Farrington & Belkis (Recusal Application) (No 2) - [2023] FedCFamC2F 1343

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343

File number(s): CAC 924 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 19 October 2023

Catchwords: FAMILY LAW – Parenting – recusal application – contentions by the Father that various interim Orders constituted alleged “findings” and which were said to be adverse to him, was patently incorrect and showed significant misunderstanding by the Father of both the Court’s processes and the nature of and distinction between interim and final Orders – the Father’s recusal Application was brought so late in the final hearing, which remains part-heard, that according to authority, it amounted to waiver because the Father waited so long to raise any concerns about either matters of procedure and matters of evidence, both when he was legally represented and when he was self-represented – even after bringing his recusal Application, and it being heard, the Father filed a further Application in which he sought that the trial Judge (against whom the recusal Application was filed) hear that Application – the Father is ex-defence forces but has erroneously sought to apply to the Court (and the lawyers who appear before it) certain rules and procedures from the Australian Defence Force, including that, somehow, the Court is responsible for any and all communication between lawyers, outside Court, that impacts or may do so, the litigation, which again highlights the Father’s failure to appreciate the role of lawyers and their duties to the Court, including and especially the duty of lawyers appearing in the role of Independent Children’s Lawyer – recusal Application refused – costs of all other parties, including the ICL and the Director-General, reserved..

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51

British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Re JRL; Ex parte CJL (1986) 161 CLR 342

Michael Wilson & Partners v Nicholls (2011) 244 CLR 427

Smits v Roach (2006) 227 CLR 423

Vakauta v Kelly (1989) 167 CLR 568

Division: Division 2 Family Law

Number of paragraphs: 74

Date of hearing: 16 August 2023

Place: Canberra

Applicant Self-represented

Counsel for the Respondent Mr J Haddock

Solicitor for the Respondent Bevan & Co

Independent Children’s Lawyer Robinson + McGuinness Family Law

ORDERS

CAC 924 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FARRINGTON
Applicant

AND:
MS BELKIS
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

19 OCTOBER 2023

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Applicant Father’s Application in a Proceeding filed 16^th August 2023 be dismissed.
2.The costs of the Applicant Mother, the Director-General and the Independent Children’s Lawyer of and incidental to the Applicant Father’s Application in a Proceeding filed 16^th August 2023 be reserved.
3.The matter be listed for re-opened Final Hearing on 14 November 2023 at 10:00am in CITY V, in relation to those issues post-dating 28 April 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

Formally and procedurally, the current Application by the Father seeks that I recuse myself from the proceeding that involves the two children of the relationship. Informally, and also on the basis of multiple comments by the Father in his extensive if not expansive written submissions, and also in his various oral submissions, the Application is something of a de facto appeal against earlier Orders (dated 4^th August 2023) whereby, pending further Order, I directed that the children live with their Mother and that the children spend no time with the Father. These Orders were supported by the Director-General of Child and Youth Protection Services (Region U) (“CYPS”).
The Father’s recusal Application was on the dual, or alternative, bases of apprehended bias and actual bias. For the reasons that follow, neither ground is made out. Indeed, in a number of respects, in the course of multiple engagements with the Father during the hearing of this Application, it appeared that not only did the currently self-represented Father misunderstand the nature and procedure that attend such Applications (which is not a criticism), upon certain things being explained to him, the Father almost seemed to concede that certain claims made by him were untenable and unsupportable.[1]
[1] For earlier hearings, the Father was legally represented.
The unusual circumstances in which the Father’s Application arose are summarised in the brief chronology below, which includes the fact that the final hearing was part-heard. The Father’s recusal Application meant that the final hearing was effectively “put on hold” because the Court was required to deal with this Application on the day when the hearing was meant to conclude.
The further curiosity, if not perhaps procedural anomaly, was that in the course of dealing with an Application (on 3^rd August 2023) by the then Independent Children’s Lawyer (“ICL”) that she be discharged (which was granted, and a new ICL appointed), the Father confirmed that, notwithstanding various adverse comments directed to the Bench, he did not intend to make any Application for recusal of the presiding Judge. This was recorded in Notation B to the Orders made on 3^rd August 2023. The Father obviously has had second thoughts.
Procedural Chronology

16^th – 17^th March 2023 Final Hearing with respect to parenting.

22^nd March 2023 Subpoenas to W Authority and Z Authority issued by the Independent Children’s Lawyer.

29^th March 2023 Father filed Notices of Objection with respect to W Authority and Z Authority subpoenas.

18^th April 2023 Subpoena Hearing with respect to Father’s Objections.

21^st April 2023 3^rd Day of Final Hearing (part-heard).

28^th April 2023 4^th Day of Final Hearing (part-heard).

1^st May 2023
Judgement Delivery – subpoena objections.

-     Subpoena objections dismissed.

-     Father ordered to pay Respondent Mother’s and Independent Children’s Lawyers costs for Counsel and solicitors fees.

22^nd May 2023 Father’s legal representatives withdraw.

16^th June 2023
Mother files Application in a Proceeding.

-     Mother seeks immediate return of children to her care and Father’s time be suspended on an interim basis.

Father files Application in a Proceeding.

-     Father seeks sole care of children and supervised visits for the Mother.

19^th June 2023
Orders in Chambers –

-     Mother to file additional Affidavit on behalf of the maternal Grandfather responding to Father’s Affidavit filed 16^th June 2023.

-     Parties and Independent Children’s Lawyer to file 1 page of written submissions in relation to procedural course with respect to the re-opening of evidence.

20^th June 2023
Orders in Chambers –

-     Request made for Director-General to intervene in the proceedings.

23^rd June 2023
Interlocutory Hearing with respect to re-opening proceedings.
Representative of Director-General attended, although not yet a party to proceedings advised of intention to intervene.

-     Region U CYPS advised a further appraisal would be completed in approximately 3 weeks and provided to the Court under previous s.69ZW Order.

28^th June 2023
Judgement Delivery – re-opening proceedings.

-     Director-General joined as a party to the proceedings.

-     Final Hearing listed for a further date only in relation to issues post-dating 28^th April 2023.

-     Orders made for resumption of Mother’s time, and eventual return to week-about arrangement.

Notations –

-     Father confirmed he did not seek to make an Application for disqualification of the Independent Children’s Lawyer.

10^th July 2023
Orders in Chambers –

-     Each party to file and serve one consolidated Affidavit and one Affidavit per lay witness to be relied upon at the re-opening Final Hearing.

26^th July 2023
Orders in Chambers –

-     Region U CYPS Appraisal Report released to parties.

-     Parties not to disclose contents of Report to children or any other person.

Independent Children’s Lawyer files Application in a Proceeding seeking Orders for discharge.
Mother filed further Application in a Proceeding.

-     Mother sought Orders for sole parental responsibility and sole live with Orders, and for the children to have no contact with the Father.

31^st July 2023
Orders in Chambers –

-     Independent Children’s Lawyer provisionally discharged.

2^nd August 2023 Affidavit filed by Ms AA of Region U CYPS in support of Mother’s Application in a Proceeding filed 26^th July 2023.

3^rd August 2023
Father files Application in a Proceeding.

-     Father seeks Final Hearing on 16^th August 2023 be adjourned.

-     Father seeks children live solely with him, but spend time with the Mother in accordance with their wishes.

Interim Hearing – Interim Change of Residence Applications
Notations –

-     Neither party seeks to cross-examine the former Independent Children’s Lawyer at the part-heard Final Hearing.

-     Notwithstanding adverse comments in the further CYPS Appraisal Report, the Father does not make an application for recusal of the presiding Judge.

4^th August 2023
Judgement Delivery – Interim Change of Residence

-     Mother to hold sole parental responsibility.

-     Children to live with the Mother and spend no time with the Father.

-     Recovery Order to lay in the Registry pending compliance.

14^th August 2023 Father files Application in a Proceeding seeking recusal of the presiding Judge.

16^th August 2023 5^th Day of Final Hearing (part-heard).
Unable to proceed with Final Hearing – Father’s Recusal Application heard.
The Father’s evidence and primary submissions

The Father’s Application, filed 14^th August 2023, was supported by an Affidavit filed a day later on 15^th August 2023. Again, not as any criticism, it is a combination of asserted “facts” (most of them simple or bare assertions) and extensive submissions, which are set out in its 189 paragraphs (37 pages), with multiple sub-paragraphs and various annexures. Expansive and diverse are two descriptions that readily come to mind in relation to this document.[2] The Father acknowledged, in a manner of speaking (at par.3), that he had not sought leave to file a document in excess of that prescribed in Rule 5.08 of this Court’s Rules. The text of par.3 was in the following terms; it provides a good, simple, preliminary sample of the broad-brush and regularly disjointed approach of the Father:
3.I provide this with urgency for consideration and apologise in advance that leave was not requested. This was largely due to the preparation required in an extraordinary environment, in extenuating circumstances, where the recent Orders (influenced by what I feel is apprehended bias, bias, nonfeasance and against the overarching purpose of the court, and my due process) may be considered to have a significant effect on the children and me.
[2] At the outset of the recusal hearing on 16^th August 2023, for abundant caution, I went through the 189 paragraphs of the Father’s Affidavit, summarily, with occasional comment. See T 5 – 15 of the Transcript from this date.
Pars.5 – 16 outline a range of matters, which the Father says constitute the “relevant history and summary-outstanding matters” [sic]. They begin by conflating the alleged combined “views” of the Court and the ICL and aver that neither the Court nor the ICL gave sufficient “weight” to the “verifiable history” presented by the Father. He says that, to a degree, this has constituted “the appearance of apprehended bias” [sic]. Pars.7 – 10 provide parts of a history of sorts regarding the Mother’s alleged “inflexible and unreasonable” approach to parenting in the light of various surgeries the Father required, the Mother’s “false and unsupported allegations of family violence”, and that the Court has let the Mother run her “ever-increasing allegations” but in circumstances where the Court “has not provided due consideration to the Expert responses, the claims of the children and evidence provided by me.” How and why the Father regards himself as an “Expert” was not explained.
Pars.15 and 16 contend, among other things, that (a) there was no evidence before the Court to sustain the recent decision to remove the children from the Father’s care, (b) the Court’s conduct towards the Father was, among other things, a form of bullying and a “grave error in ethics and law”, and (c) the recent, extremely detailed Report by CYPS, which was the foundation for the Court removing the children from the Father’s care, was, in his view, “tainted through the contribution and influence of the ICL.” How and why the purported influence of the ICL in relation to the action and reporting by CYPS was or is relevant to the recusal Application directed to the Court was not explained or otherwise evident. Plus, it is obviously mutually inconsistent to contend, on the one hand, that there was no evidence before the Court to support the decision complained of (but not appealed), yet on the other hand, to refer specifically to the CYPS Report, which was the primary basis for the Court’s earlier decision to change the residence of the children. How the ICL “influenced” the CYPS Report was not explained. Likewise, how the alleged bullying constituted a “grave error in ethics and law” was neither explained, not what particular ethical duty (or duties) applied and somehow were breached.
The exceedingly broad grounds or reasons for the recusal Application were set out in pars.17 and 18. They are set out below, noting, among other things, that generalised contentions about “disregard to constitutional protections” (with none identified here or elsewhere), and “Article 18 of the ICCPR”, which is not part of Australian domestic law, assist no one including the Father, and his generalised complaint about the ICL, CYPS, and ultimately the Court. Pars. 17 and 18 are as follows:
17.I am gravely concerned that the narrative of my matter is prejudiced by nonfeasance, apprehended and real bias, the allowance of hearsay, grave omissions and inadequate inquiry, unequally weighted evidence, disregard to constitutional protections and Article 18 in the ICCPR, upholding my right to a reasonable belief in proper oversight to curtail the ICL’s repeated nonfeasance and misconduct and complete disregard to the children’s views and needs, under the oversight of You Honour.
18.I believe the abovementioned has culminated into the grave and significantly unsupported decision to sever the ability of the children to gain the benefit of a meaningful relationship with myself, their father, contrary to their best interests.
I need only observe that the contentions in these paragraphs are extremely generalised. The complaints, particularly in par.18, broadly described, are essentially grounds of “appeal”, without any appeal having been undertaken.
It would be too onerous, and of no particular utility, to address each of pars.19 – 34, which aver that the current proceeding is a “re-litigation of the 2019 trial.” One immediate observation that must be made, however, is that it is completely illogical to complain about re-litigating an earlier proceeding in circumstances where the Father is the current Applicant. This is also to say that he is the one who is seeking to re-litigate earlier proceedings. Again, generalised references to res judicata and to Anshun estoppel, assists no one without relevant detail, which is sadly lacking. Bare assertions, without evidence, do not make good the general reference to any particular principle.
In addition to other generalised complaints, at par.31, the Father confirmed that because of his dissatisfaction with the Orders of the Court, and rather than appeal them, he confirmed that his focus was upon my “conduct”, without explaining or giving particulars of his concerns. Par.31 was in the following generalised terms:
31.After the recent reversal in residence which has, again, put my children in a position of unacceptable risk, I have no other reasonable option but to draw focus on His Honour’s conduct.
Next the Father says (at par.32), almost apologetically, that the Court has been “misinformed by much of the material and unsupported narrative surmised by the ICL …” These and other matters set out in very broad terms in subsequent paragraphs lead the Father to conclude (at par.34) that there have been various breaches of his and his children’s [unidentified] human rights “under the Constitution” and likewise under the ICCPR, and various sections of the Family Law Act 1975 (Cth) (“the Act”). The Father went further to indicate that because of the ICL’s submissions, and my “apprehended bias” (again no details are supplied) somehow and on some unspecified date the Father was threatened with “some form of custodial sentence.” No such threat was ever made.
Next, at pars.35 – 41, there is a blancmange of claims said to be based upon a specific failure to consider and apply Article 18 of the ICCPR. As earlier noted, as important as this International Covenant is, it is not part of the domestic law of Australia. As such, there is no utility in addressing the paragraphs noted. However, I will note generally the complaints by the Father about “numerous failures of Court personnel” (par.36: again, no details are supplied), and alarmingly, a complaint against Counsel for the ICL, who the Father said badgered and intimidated him during the hearing on 3^rd August 2023. I am said to have been “complicit in this conduct”, mainly due to my alleged “complacency.” I reject these bald, remarkable and unsustainable assertions for which no specific evidence or particulars are provided. Instead, there are only generalised complaints.
At par.39, the Father advances, again without specifics, a claim of “pack-bullying” against him (which I reject), while at par.41, there is a general but completely improper reference, whose specific “target” is not identified, regarding alleged “perjury, procedural unfairness, and apprehended bias.” On one reading of this paragraph, it is likely that it is directed to CYPS and the preparation of its lengthy Report. If so, it is difficult to see how this involved the Court at all.
Further claims of perjury follow at pars.42 – 56. To state the obvious: such claims are extremely serious. They should not be made without very significant and clear evidence. To give every allowance to the currently self-represented Father, he may simply be using the term in a more “lay” sense and not in any specific legal sense. In any event, it should not have been used, especially since it comes down, in many instances, to the Father’s view that the Mother’s evidence (which he invariably considers to be jaundiced against him) is contrary to his own and that his evidence is incontrovertibly correct. It follows, according to this view, that anything that contradicts the Father’s evidence constitutes (in his terms) a “false narrative”. The Father’s contentions in this regard fail to appreciate that (a) the Court has made no formal findings on matters of evidence, because (b) the trial has not concluded. Accordingly, rather like “beauty” being in the eye of the beholder, the Father’s perception of the evidence, and whatever narrative he perceives, arises from his own perspective, with the Court not yet having made any ruling on evidence at all. The only thing that has happened is that evidence, of all kinds, is being “tested” at the final hearing.

The next tranche of complaints from the Father (which is precisely what they are), from pars.57 – 82, relate, in various and varied ways, to contentions regarding the “mental health” of the parents. It is the Father’s firm view that it is pre-eminently the Mother whose mental health is, and should be, questioned. In his view, there is nothing for the Court to see regarding his own mental health. Even his historical evidence regarding his PTSD arising from his defence forces service has been taken by the Father to be some form of personal attack upon him. He has taken great umbrage at it. Again, it is an unfortunate and mistaken view of the Father. Rather, it is a question where a wide range of evidence, involving both parties, is being “tested”. The Court’s determination of it awaits, including the conclusion of this recusal Application.
Also mixed into these same paragraphs are, again, complaints about the ICL. How such complaints assist the Father regarding my recusal was not evident, save that, apparently, I did not keep a tighter rein on the ICL. This rather begs the question as to why have an “Independent” Children’s Lawyer if she or he was going to be “guided” or directed by the Court what to do, or not do, and therefore whose independence would be compromised! Such matters were elaborated, in a manner of speaking, during the hearing in the context of the Father contending that it is the role of the Judge properly to “lead” the lawyers who appear before the Court, rather like a platoon leader who gives direction to ADF staff, and in turn, such leadership, is meant to lead lawyers to be proper and submissive “followers” of the Court. The translation of this defence force “command and control” style to civilian life, and to curial and lawyers’ conduct, was pointed out to the Father as a plainly not a suitable “model” for litigation or any kind. And it certainly does not “play out well” when applied, as the Father contended, to lawyers, who are notoriously independent! This sort of “exposure” of the Father’s thinking and mind-set regarding his perception (or assumption) of a highly regulated legal profession, akin to a defence force platoon or similar, at least gave the Court a better insight into the Father’s thinking, albeit that it was seriously awry, indeed completely distorted, in terms of standard legal and judicial practice.
In the Father’s own words, he noted the following (emphasis added):[3]
[3] T 16, 17, 18, 25 & 26.
HIS HONOUR:   Sorry. Are there any matters of practice and procedure or whatever else that you wanted to ask first?
[MR FARRINGTON]:   No, sir. No. I think I will just get on and pull off the bandaid. As far as practice and procedure and these being so familiar, to lawyers they are. To me, they’re not.
HIS HONOUR:   No, no. I understand that. That’s why I’ve taken the large amount of time that I have just to go through it.
[MR FARRINGTON]:   And I appreciate that. At the end of the day, your Honour, I’ve lost confidence in you. Everything aside, and understanding the way you’ve read that affidavit, my understanding was that that affidavit would then lead into a hearing, as in, a proper hearing,
…
[MR FARRINGTON]:   So when you say something is a ruling and something is a comment but I’m hearing it, to me it’s almost the same thing. So when you say something like, “On the balance of probabilities, the mother did not assault [X]”, when you say that, that is not me putting words in your mouth. That’s you making a statement about something you have determined.
…
HIS HONOUR:   But I have made no ruling on anyone’s character.
[MR FARRINGTON]:   I understand that you haven’t made a ruling, but I – but my contention is the way you act towards me and my case in almost every facet of everything you do gives me an apprehension that you are absolutely 100 per cent biased against me.
…
HIS HONOUR:   So if I could just ask this: you know the focus is meant to be about me for a change. How does whatever the purported collusion between [Mr H] and [Ms BB]– how does that relate to me? Was I involved in that or not?
[MR FARRINGTON]:   Yes, you are. But for your leadership that wouldn’t happen. Leaders understand how and when to keep people that are under their control within, let’s just say courtroom in this capacity. They understand how to do that and with an aplumb that tries and keeps things harmonious.
HIS HONOUR:   So that’s aplomb, right, not aplumb.
[MR FARRINGTON]:   Sorry for my language, your Honour.
HIS HONOUR:   No, no, no, no. No. But – but much more seriously, I’m – again, I’m just trying to understand better, slightly channelling Donald Rumsfeld again. So if I don’t know whatever this collusion is between [Ms BB] and [Mr H] that’s said to be going on, how can I be responsible for that?
[MR FARRINGTON]:   Because you have set the preconditions that the punishment that you would give them if they knew about it, is nothing that they would worry about. So that’s the first part of that. And having read a lot of leadership manuals, it’s part of it. However, the other half of leadership is followership. And neither of them have it, or had it for that activity that they did together on your behalf.
HIS HONOUR:   So am I meant to be sort of like a policeman, to follow them up if I find out something? If I don’t know anything about it, I am meant to follow up [Mr H] and [Ms BB] about what they did or didn’t do?
…
HIS HONOUR:   It’s not something that I’m responsible for, be that I know it, that I – that I don’t know about. How can I be responsible for ‑ ‑ ‑
[MR FARRINGTON]:   Your Honour ‑ ‑ ‑
HIS HONOUR:   ‑ ‑ ‑ that whatever the lawyers do or don’t do that I’m not aware of?
[MR FARRINGTON]:   Your Honour, you own your courtroom. Everything that goes on inside or outside your courtroom to do with your cases is your responsibility. If they feel that they can get away with something, and that the punishment that you could possibly give them is either acceptable or that you won’t, then they’re going to do whatever they want. And that’s what I found with the ICL from day 1, and I’m disappointed that [Mr H] decided to join in with breaking one of your orders. I can’t, you know, speak for him. I’m sure he will speak for himself and make up an excuse. But – I withdraw that.
Your Honour, it’s for these reasons that I hold absolute apprehension that you have not only exhibited bias against me, but you continue to. And just in these conversations, although I do now understand some of your sarcasm, it’s different to mine and it doesn’t always come off like that. The amount of applications that I have made, either personally or through my legal team, that have been denied again and again and again, it is phenomenal. And that in itself is an indication that you are biased against me, which gives me apprehension.
Further, various comments made during the course of the final hearing, including by the Court, have obviously been taken by the Father to represent either settled views by the Court and or by others, such as the ICL. In this regard, obviously to a significant degree, such plain misunderstanding by the Father, while understandable, continue to highlight the unfortunately jaundiced and mistaken lens through which the Father views the yet to be concluded litigation – both as to matters of evidence, and matters of practice and procedure.
Next follows (pars.83 – 116) a veritable smorgasbord of claims and references. They all seem to be predicated upon what weight has, or has not, been attributed, to the views of the children. In aid of his position, the Father quotes variously from the Royal Commission into Child Sexual Abuse (pars.85 ff), an Australian Law Reform Commission “family law review” (par.91), a certain parliamentary inquiry into the family law system (par.92) and various submissions to this inquiry, comments from the organisation “CC Organisation” (pars.94 – 103), which is used to provide some sort of critique of the CYPS Report used in the current litigation (i.e this is to say that the Father uses the generalised comments of one well-known group to critique the very specific details of the CYPS Report). Further criticism is made of the ICL and her alleged influence over the preparation of the CYPS Report, a contention vehemently denied by Mr N on behalf of the Director-General (discussed further below).
Pars.112 and 113 highlight the unfortunate and inapposite misapprehension of the Father at comments from the Bench that simply note that the Father is not a lawyer. Unfortunately, the Father completely misunderstood this simple statement of fact; it was not a criticism of him. The fact that the Father took great umbrage at it highlights, if any more be needed, his acute sensitivity, which seems regularly to lead him completely to misunderstand further what should otherwise be very straight-forward procedures and comments. The paragraphs in question were in the following terms:
112.I should not be judged on whether His Honour likes my personality or delivery or argument or fact. I am not a lawyer and I take umbrage at Your Honour’s offensive remark to me that “[Mr Farrington] is not a lawyer, but he is an experienced litigator”. Such a remark does nothing to ease my concern at what I believe to be apprehended bias.
113.I apologise if I have not always presented to His Honor’s liking. I am not a legal representative. I am a self-represented father and would respectfully like appropriate leniency with this consideration. I respectfully state that it is the substance of my verifiable evidence which should be impartially weighted. I sincerely claim it is my genuine belief that this has not occurred.
Paragraphs 117 – 147 primarily concern the Father’s complaints against the former ICL. Strictly speaking, I need not, and should not. comment on them. Their relevance, such as it is, arises essentially because of the Father’s misguided transposition of a defence force model of “leadership” upon the Court, and its supposed flow-on effects for the lawyers who appear before it. Accepting, up to a point, how completely inapposite such a model is on litigation and the conduct of the Court, simply noting it explains, to some degree, the highly unusual attempt by the Father to assert various “failures” by the ICL as “failures” by the Court, which fuel the Father’s claim for recusal. My comments here and earlier are basically sufficient to obviate the need to address these lengthy, but completely misinformed, complaints by the Father against the ICL, and in turn, against the Court. The complaints include contentions, at pars.145 – 147, of “non-feasance” regarding the conduct of the ICL (the Father never explains his understanding of “non-feasance”). Whatever “research” the Father has done, it is so awry in relation to such a contention that it is completely otiose to attempt to respond to it.
Pars.148 – 161 raise complaints relating to property proceedings involving the parties. Given that there remains nothing formalised in relation to any Application in this regard, I confess to having no understanding how such matters can impact upon, or have any relevance to, the recusal Application.
Finally, pars.162 – 188, outline what the Father says are the grounds of his recusal Application. After some general observations regarding what the Father says he has learnt about “law and equity” the Father contends that I have relied unacceptably upon the ICL’s “highly prejudicial conduct” which has, in his view, “influenced” the Court. And in general terms, the Father impugns my character, it seems both generally and as a Judge (par.167). He contends further that somehow (details again not provided) I have exerted some form of “undue influence”, in part, it would seem, because I have not given proper consideration to the “Mother’s psychological status” (par.169). For completeness, I should note that the ICL was discharged, not because of anything untoward about her conduct, but because of certain actions of the Father that, in certain senses, could have compromised her position and required her to give evidence at the trial.
The Father makes generalised assertions about certain things, mostly alleged findings, which have not in fact been made for the obvious, and often-repeated, reason that the Court remains “part-heard” in the final hearing. No findings of any kind have been made. And the Orders regarding the children living with the Mother were made (a) only on an interim basis, and (b) essentially on the basis of the detailed, independent assessment Report of CYPS. The Father’s further claim, at par.173, that somehow, he is prevented from cross examination of all witnesses, in addition to the Mother, is simply without foundation. As was noted and explained by the CIL during the hearing, In no way critically) the Father did not appreciate or properly understand the terms and operation of s.102NA of the Act. He also failed to appreciate the difference between a “witness” and a “party”; he obviously conflated the two.
At par.177, somehow it is the Court’s fault that there are shortages of lawyers available to take up grants pursuant to s.102NA of the Act, one of which was made in the Father’s favour. Again, my character (or lack of it) is impugned in the remaining paragraphs, especially in relation to my alleged bullying of the Father, apparently which extended to when he was legally represented. How and why this was so was not explained.
The final paragraphs of the Father’s Affidavit/submissions (pars.189(a) – (q)) set out the Orders that he seeks in relation to parenting matters in lieu of those currently put in place by the Court on an interim basis. Again, as a matter of practice and procedure, and evidence, a change in parenting Orders was formally not the subject of the current Application. To put it somewhat colloquially: “recusal” was the only item on the Court’s agenda according to the Father’s Application. Nothing else could be considered unless and until the recusal Application was determined.
The Father’s supplementary submissions
Very early on the morning of the hearing of the recusal Application, the Father provided to all parties involved a document entitled: “Rejoinder to: Respondent Mother’s Aide Memoir on Judicial Recusal Application.” As seen below, the Aide Memoir of the Mother ran to 37 paragraphs. The Father’s “Rejoinder” ran to 144 paragraphs. To a significant degree, it was excessive, and often appeared to be more of a pastiche of various authorities, together with the repetition of various and multiple complaints made in his earlier Affidavit/submissions. Rather crucially, the Father’s complaints are wide-ranging but are invariably predicated upon his perception or view, as opposed to that of the reasonably well-informed bystander, as the usual tests for [apprehended] bias, set out below, prescribe.
Further still, in a significant number of respects, the Father remained convinced that the Court had [somehow] made specific and formal “findings” when no such thing had occurred. And at the risk of being unduly repetitious, notwithstanding the prodigious length of the submissions, actual detail of the claims and complaints is lacking in abundance. For example, at par.98 of the Father’s Rejoinder submissions, he stated:
However, I will, argue that while Judges are indeed permitted to form preliminary views, these should not unduly influence their final decision and should always be open to revision based on the evidence presented. In my case, I would argue that the Judge has shown an unwavering commitment to their initial views regardless of new evidence or arguments, which could constitute actual bias.
Where and how this “unwavering commitment” is to be found was/is nowhere to be seen. Certainly, no evidence of it, and nothing else that would or could constitute “actual bias” and the very strict test in relation to it, is also completely lacking.
These very long Rejoinder submissions were as follows (emphasis in original):
1.In the case, Australian Broadcasting Corporation v O’Neill [2006] HCA 46, the High Court of Australia held that test for apprehended bias was “whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide”.
2.This case is relevant as it sets out the test for apprehended bias, which is alleged in my application. The test of “whether a fair-minded lay observer might reasonably apprehend bias on the part of a Judge”. This is different from actual bias, where it must be demonstrated that the Judge was “so committed to a conclusion already formed as to be incapable of alteration”.
3.As per the above Judgment, my allegations of both actual and apprehended bias meet either of these standards as accounted. The above case along with Livesey & Anor v New South Wales Bar Association (1983) 151 CLR 288 is relevant as it establishes the test for apprehended bias in Australian law. Applying this to my situation, my complaints about the Judge's conduct and request for recusal should be considered from the viewpoint of a “fair-minded lay observer”. If such an observer would reasonably apprehend that the Judge might not bring an impartial mind to bear upon the resolution of the case, then there may be grounds for recusal.
4.Moreover, in Webb v The Queen (1994) 181 CLR 41 The High Court held that if circumstances exist which give rise to justifiable doubts about a Judge's impartiality, then they should disqualify themselves from hearing a case. This case is relevant because it further defines the standard for judicial recusal. If my concerns about the Judge's conduct and impartiality could lead a reasonable person to doubt the Judge's impartiality, then according to Webb v The Queen, there may be grounds for recusal.
5.In response to Counsel’s comments about these submissions being prepared to save trial time due to extensions caused my Counsel's decision not to continue cross-examining, it is worth noting that in both Livesey & Anor v New South Wales Bar Association and Webb v The Queen cases, it was emphasised that “perceptions of fairness and impartiality are paramount in maintaining confidence in the judiciary”; therefore, any actions taken by me or my counsel (should I have had one at the time) should not detract from my right to have my case heard by an impartial Judge.
6.In response to the statement by Counsel of the mother’s aide memoire regarding paragraph 1, I argue (based on the above case) that while my application may have procedural issues which will be rectified moving forward, it does not dismiss or lessen my allegations of apprehended or actual bias which are significant and serious claims. These concerns need careful consideration by the Court considering established case law principles on apprehended and actual bias in judicial proceedings.
7.In response to Counsel’s statement at paragraph 2, I refer you to Johnson v Johnson (2000) 201 CLR 488 since this case delineates the principles of apprehended bias. It established that the fair-minded observer is neither "complacent nor unduly sensitive or suspicious”.
8.Throughout the entire case I have not been unduly sensitive; however, I remind Counsel that in accordance with section 60CA of the Family Law Act 1975 (Cth), the best interests of the child should be paramount in any decision-making process. This would involve considering factors such as: the benefit to the child of having a meaningful relationship with both parents and the need to protect them from physical or psychological harm. McCall & Clarke [2009] FamCAFC 92 further reinforced that the best interest of the child is paramount when making parenting orders.
9.In response to your query regarding the complaint about extending trial time, it would be necessary to examine the specific circumstances surrounding this decision. If I genuinely believed there was a need for further cross-examination of experts for justice to be served, then this was an appropriate course of action. It is essential in any legal proceedings that all relevant evidence is thoroughly examined to ensure a fair outcome.
10.In response to Counsel regarding the complaint about extending trial time, it would be necessary to examine the specific circumstances surrounding this decision and I intend to do so; however, if I genuinely believed there was a need for further cross-examination of experts for justice to be served, in circumstances where such evidence has been withheld and required proper evaluations in the best interests of the children, then this is an abundantly appropriate course of action. It is essential in any legal proceedings that all relevant evidence is thoroughly examined to ensure a fair outcome. To do otherwise would be to invite Appeal; thereby, unnecessarily extending Court time in order to do the ‘proper job’ that should have been done the first time.
11.In response to paragraph 3 of Counsel, I refer you to Ebner v Official Trustee in Bankruptcy Citation: (2000) 205 CLR 337. Decision: The High Court held that a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the “resolution of the question the Judge is required to decide”. This case outlines the fundamental principle of Judicial impartiality which is crucial in assessing my application for Judicial recusal. Counsel’s argument suggests that my application lacks substance and should be dismissed; however, in line with the principle established in Ebner, it is important to assess whether a fair-minded observer might reasonably apprehend bias on the part of the Judge.
12.In Johnson v Johnson (2000) 201 CLR 488 the High Court affirmed that it is necessary to consider how matters appear to the fair-minded observer, rather than probing into what the Judge actually thought or felt. This case is relevant as it emphasizes that the test for apprehended bias focuses on perception rather than actual bias. If a fair-minded observer could perceive bias on the part of the Judge, then there may be grounds for recusal. My complaints should be viewed from this perspective.
13.In Isbester v Knox City Council (2015) 255 CLR the High Court held that while Judges are entitled to form preliminary views, it becomes problematic when there is a reasonable apprehension that they have pre-judged a matter before hearing all arguments.
14.In my case, my argument is that I believe that the Court has already formed views about my mental health, character, trustworthiness and reliability from as far back as 2019 without considering all the new evidence and submissions which has led to an apprehension of bias.
15.In light of these precedents, it would be inappropriate to simply dismiss my application without fully examining whether my concerns could give rise to a reasonable apprehension of bias from the perspective of a fair-minded observer.
The Obvious Difficulty
16.In response to paragraphs 4-6, I refer Counsel to Livesey v New South Wales Bar Association (1983) 151 CLR 288. Decision: The High Court held that the apprehension of bias must be established based on cogent evidence and a reasonable suspicion, not on mere speculation or assertions. This case establishes the criteria for establishing bias. In the information provided by Counsel, it is argued that I have failed to provide appropriate evidence to support my claim of apprehended bias. Counsel further states that it appears that he (me) is dissatisfied with the interim decision of the Court and has accused it of bias based on his own reasonable apprehension.
17.I remind you of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 when the High Court set out a two-stage test for determining whether there was an apprehension of bias. First, it must be identified what it is said that might lead a Judge to decide a case other than on its legal and factual merits. Second, it must be asked whether those circumstances would lead a fair-minded observer to reasonably apprehend that the Judge did not bring an impartial mind to the resolution of the question he or she was required to decide.
The Complaints Concerning Misfeasance, Res Judicata, Anshun estopppel, Constitutional Complaints, and Complaints Concerning the ICL
18.In response to Counsel’s paragraph 7(a), the constitutional matters I have raised are not nonsensical, but rather a legitimate concern that the Court has overstepped its Jurisdictional boundary and has not appropriately considered my rights under the Constitution. While the Family Law Act 1975 (Cth) does indeed refer to state powers, it does not supersede or negate constitutional protections. It is important to remember that the Australian Constitution is the supreme law of Australia and any law enacted by parliament, including the Family Law Act 1975 (Cth), must comply with it.
19.In regard to Counsel’s paragraph 7(b) as to res judicata and Anshun estoppel, while it is true of the caselaw used by Counsel that these principles generally do not apply in parenting matters as per McEnearney & McEnearney [1980] FLC 90-866 and SPS & PLS [2008] FLC 93-363, my initiating application is absolutely meritorious given that my proceedings were commenced under the full weight of requirement of Rice & Asplund.
20.Moreover, even if these principles were to apply and my application was dismissed as a result, this does not necessarily mean that I have been treated fairly or that my concerns are unfounded. The Court’s refusal to consider my application could also be perceived as bias against me – a serious issue that requires careful consideration.
21.Lastly, while certain sections of the Act may not directly apply to this case, their mention serves to highlight potential legal issues and complexities involved in family law disputes. They underscore my contention that my rights have been overlooked or disregarded in this process – an assertion that cannot simply be dismissed as "unhelpful".
22.In regard to Counsel’s paragraph 7(c), my complaint about 'failure to respect Article 18 of the ICCPR' raises concerns about my treatment within Court proceedings. The ICCPR (International Covenant on Civil and Political Rights) affirms certain fundamental rights, including the right to freedom of thought, conscience and religion. Although it may seem far-fetched to relate this to an adversarial court process, I am arguing that I feel as though my rights have been infringed upon through what I perceive to be 'badgering and intimidation'.
23.While it is accepted that strong questioning can occur in an adversarial system, there is a line between robust examination and bullying or badgering that creates an intimidating environment for a party. It could be argued that crossing this line infringes my ability to participate fully and fairly in proceedings - potentially impacting on my right to a fair trial.
24.The assertion that I 'fail entirely to understand the legal process and the ICCPR' may itself demonstrate bias by trivializing my concerns rather than addressing them substantively. The relevance of cases like Ebner and Johnson v Johnson is they provide support for my argument that if there is reasonable suspicion of bias - actual or perceived - recusal may be appropriate.
25.In response to Counsel’s 7(d) in this case, I argue that the trial Judge has shown bias against me through their interactions with the Independent Children's Lawyer (ICL). I claim that there is a perception of unfairness or bias in how the court has allowed people to run their cases, and I allege a deliberate conspiracy between the ICL and the mother's lawyers, [Mr H] who both knowingly and deliberately broke a formal Order of the Court that they have both accused me of, even when I did not as follows:
“[EE Organisation], not [DD Organisation]. A rolling referral means that [X] has an open referral that can be used when the time is right. Again, given your previous use of treating professionals, my client does not want another one to be tarnished. [X] has not been told about this, and I sincerely hope you do not speak to him about it. I also never said anyone had been engaged and confirm that no one has. I am concerned by your response, so please confirm that you do not intend to speak about this with [X]”.
26.The above conversation occurred between me, [Mr H] and included the ICL and [Ms AA] from CYPS. There was also an appointment already made with [EE Organisation] for [X] to attend his next session. Not only did I feel angry at being previously accused of booking medical/psychological appointments for the children without informing their mother which allowed the Judge reprimand me for “another contravention”, both the lawyers involved guided the mother to ensure that a booking was made for [X] and then conspired to ensure that I did not find out about it. This made me feel completely helpless and powerless both as a father and in Court as the Judge either never believed the evidence I provided him, or it was never provided to him by the ICL.
27.No matter the reason, the ICL and [Mr H] seemed to feel so confident in the Judge’s obvious bias against me, they willfully, and without fear, orchestrated this entire deceit which emboldened the mother even further to act deceitfully.
28.These above allegations can be considered under the first step of the Ebner test, as they may be seen as factors that the Judges decision-making as already been significantly influenced and remains open. If these allegations are proven, they could give rise to a reasonable apprehension of bias in a fair-minded observer under the second step of the Ebner test.
29.I also contend that my complaints about the ICL were ignored or dismissed by the Court; both formally and as occurred, informally via return email when the Judge refused me leave to file an Application in a Case against the actions of the ICL and warned me for committing a “personal attack” on the ICL instead. This made me feel unheard, ignored and not worthy of the Court’s support in a situation where the ICL was not acting in the best interests of the children. This could also contribute to an apprehension of bias, as it suggests that my concerns were not taken seriously or adequately addressed by the Court.
30.The decision in Ebner is relevant because it provides a framework for assessing whether there is an apprehension of bias in this case. Applying this framework, if I can prove my allegations and show that these factors may have influenced the Judge's decision-making, I may have grounds for seeking recusal due to apprehended bias.
31.In Johnson v Johnson (2000) 201 CLR 488, it was established that "a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question".
32.I assert that both my experiences and perceptions throughout proceedings have given me reason to believe there is evidence of apprehended bias on behalf of Judge. Not only did I feel my complaints about the ICL were dismissed without due consideration, but I have also experienced instances where I felt unfairly treated or targeted by Judge.
33.In light of these circumstances, applying Johnson v Johnson, it could be argued there are reasonable grounds for my perception of the impartiality of the Judge. Thus, should a fair-minded lay observer consider these same circumstances, they too might reasonably apprehend potential bias on part of Judge. It is then pertinent in such circumstances, to request recusal on these grounds as per that established precedent from Johnson v Johnson.
The ‘Request for Judicial Recusal’
34.In regard to paragraph 8 & 9 of Counsel’s document, aside from Ebner, and Johnson, I draw your attention to Reid v Commercial Club (Albury) Ltd Citation: [2014] NSWCA 98 where the New South Wales Court of Appeal held that an allegation of actual bias must be distinctly made and clearly proved; such a finding should not be made lightly; and cogent evidence is required. This case underlines that accusations of actual bias require strong proof. In this situation, it would need to be proven with clear evidence that the Judge has been incapable of considering any arguments or evidence presented by me due to preconceived opinions.
35.In light of these cases, it would be argued that my concerns are not simply personal grievances but are grounded in perceived actions by the Court which could lead a fair-minded observer to question its impartiality. Evidence will be presented showing how these perceived actions have affected the fairness and impartiality of the proceedings including through the use of the transcripts when delivering the reasons which would elicit such phrases from the Judge as: “destructive hunger games” or “a game of wizard’s chess where the aim is to destroy your opponent”.
36.Not only did the Judge aim these comments directly at me, he did so in circumstances of high pressure and high emotion but received the laughs from the Bar Table that I believe he was wanting. His comments made me feel punished, unheard and an object to be ridiculed by the Judge and others in his Court.
37.Furthermore, pursuant to Livesey v New South Wales Bar Association (1983) 151 CLR 288 it was established that even if there is no actual bias, if circumstances can give rise to a suspicion of bias, then justice requires disqualification. The standard is not proof of actual bias, but whether there appears a reasonable possibility of bias. I rely on this precedent to argue that despite the lack of clear evidence of actual bias, the circumstances surrounding my case can raise suspicions of bias sufficient for disqualification. I can and will highlight instances where I felt prejudiced and where I believe there was a lack of impartiality.
Relevant Law
38.In regard to Counsel’s paragraph 11 citing NADR v Minister for Immigration and Multicultural Affairs (2002) FCA 361: In response to the Counsel's argument, it is important to note that my application for Judicial Recusal does not hinge on an accusation of actual bias, which indeed is a grave and exceptional allegation as held in NADR v Minister for Immigration and Multicultural Affairs. Instead, my application is based on the apprehension of bias which is a different legal standard.
39.The test for apprehended bias as established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and requires us to consider whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. This test recognises that maintaining public confidence in the judiciary isn’t merely about whether a Judge is biased, but whether it might reasonably be thought that he or she is biased.
40.My concerns relate to procedural irregularities and perceived unfairness in the proceedings, particularly relating to how evidence was considered and how parties were treated during proceedings. My concerns are not based on factual errors or faulty reasoning by the Judge but on matters that may give rise to a reasonable apprehension of bias.
41.Considering this, I argue that my complaints should be assessed against this standard of apprehended bias rather than actual bias. I assert that the way the Court has conducted itself throughout these proceedings may cause a fair-minded observer to reasonably apprehend that there may be a lack of impartiality in its decision-making process.
42.While I acknowledge the seriousness of allegations of actual bias as noted by Justice Emmett in NADR v Minister for Immigration and Multicultural Affairs, my application should be considered under the different legal standard of apprehended bias. My concerns relate more to issues of procedural fairness and impartiality from the perspective of a reasonable observer rather than allegations of actual bias on part of the Judge.
43.In regard to paragraph 12 where Counsel cites Reid v Commercial Club (Albury) Ltd Citation: (2014) NSWCA 98. Decision: the court held that for a claim of actual bias to be established, it must be distinctly made and clearly proved. It further held that the appellant had to show that the Judge was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented.
44.The relevance to my case is because it sets out the principles for establishing actual bias, which is what I have witnessed of the Judge in my case; however, there are key distinctions between this case and my situation which should be highlighted.
45.Unlike in Reid, where the allegations of bias were not distinctly made and clearly proved, I have laid out specific instances and actions that indicate bias on the part of the Judge. These include me alleging that the Court has placed weight on certain unfounded allegations and made interim decisions without considering the validity of any of my arguments.
46.The test in Reid requires showing that the Judge was committed to a conclusion incapable of alteration, regardless of evidence or argument. In my case, I allege that the Judge has made decisions and expressed views demonstrating pre-judgement, indicating a commitment to a conclusion regardless of any of my submissions.
47.Reid also requires cogent evidence to establish actual bias. In this context, my assertions about procedural fairness breaches, perceived bullying by the Court, reliance on non-evidentiary matters, and prejudicial narrative can all be seen as evidentiary support for my allegations of bias.
48.Therefore, while Reid provides useful guidance on establishing actual bias, it is distinguishable from my situation based on these points and could potentially be used in support of my recusal application.
49.In regard to paragraph 13 where Counsel cites Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 178 ALR 421: Gleeson CJ and Gummow J observed that "the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion". This observation was made in the context of considering whether there was actual bias on the part of the decision maker.
50.This principle suggests that a Judge does not need to approach a case without any preconceived notions or opinions. Rather, they must be willing to adjust these opinions in light of the evidence presented during the course of the trial.
51.My complaints are about perceived bias, not actual bias. I argue that due process was not followed, that I was bullied by the Court, that there were matters not in evidence which were considered, available evidence that was disregarded and that there exists a prejudicial narrative against me.
52.These complaints suggest a perception that the Court has already formed an opinion on my case and is not open to being persuaded otherwise by my arguments or evidence. This is different from arguing that the Judge has actual bias against him. As an example: when I discovered that the mother had not declared her actual treating psychologist and reopened my closed case prior to a decision being made, I was made to feel as though I was some sort of ‘thorn in the side’ of the Court.
53.Initially, the ICL had refused to issue a subpoena until directed to by Chambers. The ICL undertook no due diligence to try and know the date that the mother commenced her treatment, and against my protests, issued a subpoena that had the potential to miss a lot of evidence. When I question the ICL as to why she issued such a reckless subpoena, the ICL simply told me that I could submit my own if I wanted to.
54.I compiled what I though was a proper and diligent subpoena and submitted it to Chambers with a covering letter seeking leave. The tersely worded email I received in response shocked me. My request for leave was denied and I was accused of personally attacking the ICL. Again, this made me feel unheard and irrelevant in my quest to receive all the available evidence and not just those parts that the Judge wanted me to be satisfied with.
55.The Minister for Immigration and Multicultural Affairs v Jia Legeng although referenced by Counsel, can be distinguished from my case on the following grounds:
a.In Jia Legeng, the issue was one of actual bias - where it was alleged that the decision-maker had a pre-determined outcome in mind and was not open to persuasion by any arguments or evidence.
b.In contrast, my allegations pertain more to apprehended bias - where it seems as though the decision-maker appears (from my perspective) to have already made up their mind and isn't open to considering my arguments fairly.
c.While Gleeson CJ and Gummow J suggested in Jia Legeng that Judges do not need to have blank minds but must be open to persuasion, I allege that this openness to persuasion is lacking in this case - leading to my perception of apprehended bias.
56.Therefore, while both cases involve allegations of bias, they are fundamentally different types of bias being alleged - with different standards and tests applied by Australian courts when assessing these allegations. In light of this difference, my complaint should be evaluated based on its own merits and specific circumstances.
57.With regard to Counsel’s paragraph 14, in my situation, I allege that the Judge has displayed apprehended bias against me throughout my case. I continue to argue that the Judge has formed an opinion about my character and conduct that is affecting their ability to adjudicate fairly on the matter. This can be correlated with point (a) of Justice Hayne's elements of actual bias.
58.Furthermore, I assert that this pre-formed opinion is influencing how evidence and arguments are being considered in my case. This aligns with point (b), where the decision-maker applies their opinion to the matter at hand.
59.Lastly, I believe that despite new evidence and arguments being presented, the Judge remains steadfast in their prejudiced view against me, thus aligning with point (c) where it is stated that despite new evidence or arguments, a biased decision-maker would not give fresh consideration to these aspects. In consideration of those points, I offer the following:
a.Even though a pattern existed throughout our marriage, tendency evidence was not allowed, even after reopening my case with new evidence and the Judge continually saying to me “but [Mr Farrington], you know this lady better than anyone else, you were married to her” which was true yet the Judge continued to disregard all examples of the mother’s coercive behaviour and continues to do so.
b.At one time during trial, while the mother was trying to contemplate an answer, the Judge answered on her behalf.
c.After new evidence was found it was Ordered to be allowed into my case while still incomplete.
d.The ICL, who had been acting for over 2 years, was allowed to ‘withdraw’ by the Judge 10 days from trial and nor in the best interests of the children.
e.Due to the need to subpoena the remaining evidence and find a new ICL, I requested an adjournment that was denied.
f.Although I was provided 102NA funding, there were no law firms available to assist at such short notice.
g.I was denied access to uplift or copy the new evidence which restricted me to 2 hour blocks of taking notes and dictation.
h.I was restricted, on Order issued from Chambers, from questioning anyone in the Court room (instead of just the mother was had claimed DV) on the day of trial unless represented by Counsel.
i.The lack of consideration of probable maternal risk reflected through the recent Orders effectively causing my children psychological harm.
j.Although I retained Counsel on 11 August 2023, exchanged agreements, documents et al, the day before trial my son required my emergency assistance.
k.As a result of looking after my son as best I could, I was unable to provide Counsel with the required Final Brief paperwork at the assigned meeting time because I was with the Police assisting my son. As such, Counsel was required to leave 2 hours before I was physically able to meet with him and I lost Counsel for the hearing. As such, no self-representative leniency or due process was provided.
l.I wrote to Chambers and explained what happened with my son and with my Barrister and again, requested an adjournment which was refused.
60.The response I received from out of Chambers was not only condescending in its tone, but it was also completely dismissive as follows: “We note the father’s comments both below and the Application in a Proceeding sought to be filed late yesterday afternoon seeking an adjournment of the matter in circumstances where the highly experienced ICL is newly appointed and requires further time to properly consider the matter. Nevertheless, the father himself has advised he is now attempting to brief Counsel only the day prior to the Hearing under the expectation that such Counsel will be across the matter by tomorrow”. These were unnecessary parallels to draw as one aspect related directly to my children and the other related directly to my ability to represent myself give that I had formally retained Counsel on 11 August 2023.
61.My complaints directly align with these principles from Jia Legeng's case, indicating that there may indeed be a case of actual bias present in my proceedings. The application for recusal is therefore justified as it aims to ensure a fair trial where all evidence and arguments are considered impartially without any preconceived notions or prejudices influencing judgements.
62.Moreover, it can be argued based on my allegations of misconduct by opposing parties not being addressed adequately by the Court, that there is a reasonable apprehension of bias as per Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. This principle does not require proof of actual bias but rather a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to bear upon the resolution of a question for determination – which according to my perspective, seems evident in this scenario.
63.In regard to paragraph 15 of Counsel’s documents, I refer you to Reid v Commercial Club (Albury) Ltd Citation: [2014] NSWCA 98 where the court held that an allegation of actual bias must be distinctly made and clearly proved; such a finding should not be made lightly; and that cogent evidence is required. Where the issue is actual bias in the form of pre-judgement, the appellant had to establish that the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
64.This case is relevant to my situation as it establishes the framework for assessing allegations of actual bias in judicial officers. Despite Opposing Counsel's assertion that my complaints often fail at the third step identified by Justice Hayne in Jia (i.e., the decision-maker disregarding evidence), there is compelling evidence in my case to suggest otherwise.
65.In response to Opposing Counsel's argument, I would argue that while it's true that allegations of actual bias through prejudgments often fail at this third step, this doesn't mean they always do. In my case, I believe I have ample evidence to suggest that the Judge did indeed disregard substantial and critical pieces of evidence in making their interim decision 04 August 2023.
66.Furthermore, I could argue that according to Reid v Commercial Club (Albury) Ltd, an allegation of actual bias must be "clearly proved". While Opposing Counsel has attempted to dismiss my claims as baseless or self-serving, I maintain that I have provided clear proof of bias through my detailed documentation of the Judge's actions and statements throughout the trial process.
67.Finally, Reid v Commercial Club (Albury) Ltd sets a high standard for what constitutes bias - namely, a commitment to a conclusion so firm it cannot be altered by any further evidence or argument. I believe that in my case, this level of bias has been demonstrated by the Judge's unwillingness to consider new evidence or perspectives once he had formed an initial opinion on the matter and even went to great length to ensure that new evidence was rendered ‘useless’.
68.As an example, during the 03 August hearing where I was speaking about the actions of the mother in hiding her psychologist from the ‘eyes of the Court’, the Judge said words to the effect of: “Maybe she had had enough of you and was just keeping it from you so that she could get some peace?”. Not only did this make me feel embarrassed, it affirmed my belief that no matter what I did or what evidence I presented, the Judge was going to continue supporting the mother.
69.In regard to paragraph 16 where Counsel cites Hartnett & Sampson [2008] FamCA 75 the Court held that the test for apprehended bias is whether a "fair-minded observer" would conclude that the Judge had formed opinions which might affect his or her determination of outstanding matters.
70.In this case I argue that the presiding Judge has demonstrated bias in favour of the respondent and against me. I contend that a fair-minded observer, after reviewing the conduct of the trial and the interim decision, would reasonably conclude that the Judge has formed opinions about my character and credibility which could unduly influence their determination of remaining matters.
71.In response to Opposing Counsel's argument, it is important to note that while Judges are expected to form preliminary views based on evidence presented during proceedings, it becomes problematic when these views appear to be formed without due consideration of all relevant evidence or in a manner that seems prejudiced.
72.The principle as set out in Hartnett & Sampson [2008] FamCA 75 supports my position. The Judge's apparent disregard for my arguments, combined with his decision to place significant weight on evidence from Care and Protection Services without thoroughly examining its veracity against what I have exposed as ‘interference by the ICL’, suggests an opinion formation process that is not entirely impartial; therefore, I maintain our stance for recusal based on apprehended bias.
73.With regard to paragraph 17 where Opposing Counsel cites Isbester v Knox City Council Citation: (2015) 255 CLR. Decision: The High Court of Australia found that there was apprehended bias in the decision-making process of the council and quashed the council's decision. Relevance: This case is relevant as it provides a clear explanation of the test for apprehended bias in Australian law. It emphasizes that the hypothetical fair-minded observer should be aware of the nature and context of the decision and should have knowledge about the circumstances leading to the decision. Although I am not a lawyer, I am not uninformed about the law or the issue at hand. I am aware that adjudicators are under professional pressures to uphold integrity and impartiality, and they are neither complacent nor overly sensitive in doing so.
74.I also refer you to Johnson v Johnson Citation: (2000) CLR 488. Decision: The High Court held that Judges do not need to be entirely passive or silent during proceedings. They can ask questions and make comments without causing a reasonable apprehension of bias.
75.This case is relevant because it clarifies that Judges can actively participate in Court proceedings without giving rise to an apprehension of bias. In my case, any active involvement by the Judge does not necessarily lead to a reasonable apprehension of bias. The Judge's actions should be viewed through the eyes of a fair-minded lay observer who understands that Judges may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure time is not wasted.
76.In response to Opposing Counsel's argument, while it's true that a fair-minded lay observer would have some general knowledge about how legal proceedings work, this does not mean they would automatically discount any potential indications of bias on part of the Judge. If there are clear instances where the Judge has shown partiality or has failed to give fair consideration to all evidence and arguments presented, then this could potentially lead this hypothetical observer to question their impartiality, justifying a recusal application.
77.It's important to note that even if my application was unsuccessful, this does not necessarily indicate that my claims were baseless or that I was merely dissatisfied with an unfavorable ruling - rather, I may have had legitimate concerns about perceived bias which I felt needed addressing for fairness in his trial.
78.Both the above two cases emphasize the importance of Judges maintaining impartiality and fairness throughout legal proceedings - and while Judges are allowed some level of active participation in court proceedings, this must not cross into apparent partiality or prejudgment.
79.In regard to paragraph 18 where Opposing Counsel cites R v Watson (1976) 136 CLR 248 the High Court of Australia held that a Judge should not preside over a case if there is any reasonable suspicion from the parties or the public that he/she may not be impartial or unbiased. In such circumstances, prohibition will apply. This is crucial to maintaining public confidence in the justice system. If there is any reasonable apprehension or suspicion that the tribunal has already pre-judged the case, then confidence in its decision cannot be maintained.
80.This case is relevant to my application for recusal as it sets out the principle that a Judge should not preside over a case if there is any reasonable suspicion of bias or prejudice. Here, I have alleged bias by the Judge, claiming that the Judge has failed to follow due process and has allegedly bullied me. I also claim that there is a prejudicial narrative against me while making an interim determination.
81.In response to Opposing Counsel's arguments, I will argue based on R v Watson that my allegations of bias, if found to be reasonably suspected by a fair-minded observer, could warrant recusal of the Judge. It is crucial for maintaining public confidence in the administration of justice that all parties have faith in the impartiality and fairness of their judicial officers.
82.In regard to paragraph 19 where Opposing Counsel cites Ebner v Official Trustee in Bankruptcy Citation: (2000) 205 CLR 337, the High Court held that the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide. The High Court also stated that if there is real doubt, it would be prudent for a Judge to decide whether or not to sit to avoid inconvenience if an appellate court were to take a different view.
83.In my case, I argue that there is indeed a "real doubt" about the impartiality of the Judge due to multiple instances of perceived unfair treatment and alleged bias against me. I believe this case is relevant because it provides a basis for my argument that the Judge should consider recusing himself from this case due to these concerns.
84.My argument is not merely based on my dissatisfaction with the interim decision but rather on specific instances of perceived unfairness and bias in these proceedings. This includes allegations of bullying, failure to respect due process, prejudicial narrative, and considering matters not in evidence.
85.I assert these issues go beyond mere dissatisfaction with an interim decision; they speak directly to whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide as per Ebner v Official Trustee in Bankruptcy.
86.Therefore, I believe that this case supports my application for recusal as it emphasizes both the importance of perceived impartiality in maintaining public confidence in Judicial processes and suggests prudence in cases where there's real doubt about a Judge's ability to remain impartial.
87.With regard to paragraphs 20-23 where Opposing Counsel cites Anae v R Citation: [2018] NSWCCA 73, in this case, the court found that there was indeed apprehended bias on the part of the trial Judge. This conclusion was reached by applying a four-step process which involved considering if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide. This case is relevant to my situation because it outlines the test for apprehended bias. According to this test, if a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question at hand, then there may be grounds for recusal. If I can demonstrate a connection between events that give rise to an apprehension of bias and a possibility of departure from impartial decision-making in my case, then it may support my application for recusal.
88.Furthermore, where Counsel cites Huda & Huda & Laham Citation: [2018] FamCAFC 85, in this case, while no apprehended bias was found by the Full Court of the Family Court, procedural unfairness was determined based on the Trial Judge’s interventions, including their number, length and circumstances. This case is relevant as it demonstrates that even if bias isn't found, other factors such as procedural unfairness can impact a judgement. In my case, I can demonstrate similar irregularities or undue interventions by the Judge, strengthening my argument for recusal even in absence of demonstrable bias. However, it should be noted that simply demonstrating procedural unfairness would not necessarily lead to a successful recusal application; rather, it could lead to an appeal on those grounds.
89.With regard to paragraph 24 where Opposing Counsel cites Newett, I firstly refer you to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. This case provides a definition of actual bias, stating that it requires a demonstration that the primary Judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." This decision is relevant to my application because it sets out the standard I need to meet in order to show actual bias on the part of the Judge.
90.In response to Opposing Counsel's argument, it can be argued that this standard has been met in my case. The fact that the Judge has made an interim decision without considering all my available evidence or hearing my full arguments could indicate that they the Judge is committed to a conclusion that cannot be altered by any further evidence or arguments I might present.
91.Further with Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 it was held that allegations of actual bias require cogent evidence and should not be made lightly. This decision is relevant as it emphasizes the seriousness of an allegation of bias and the high standard of proof required.
92.However, in response to Opposing Counsel's argument using this case, I argue that I have provided cogent evidence of bias, including examples of the Judge making decisions without considering all available evidence, ignoring certain arguments put forward by me, and making an interim decision against me without giving me a fair opportunity to present my case.
93.Finally with the Case of Newett & Newett (No. 6) [2022] FedCFamC1A 70 this case provides a summary of what constitutes actual bias and emphasizes that such a finding requires cogent evidence and should not be made lightly.
94.In response to Opposing Counsel's use of this case, I argue that I have provided sufficient evidence of actual bias on the part of the Judge, including specific instances where the Judge disregarded my evidence or arguments and made decisions without giving me a fair opportunity to present my case.
95.Overall, while these cases set a high bar for proving actual bias on the part of a Judge, I can argue that I have met this standard based on my specific allegations and evidence.
96.With regard to Counsel’s paragraphs 25 & 26, in Charisteas & Charisteas Citation: (2021) 273 CLR 289, the High Court reiterated the principles of apprehended bias, stating that a judge is not expected to remain passive or 'sphinx-like' during proceedings. They are permitted to express tentative or preliminary views without this being seen as prejudgment.
97.This case is relevant because it directly addresses one of my main complaints – that the Judge has shown bias in expressing views and making decisions throughout the proceedings. The Opposing Counsel references this case to argue that the Judge's actions fall within acceptable conduct as outlined by the High Court.
98.However, I will, argue that while Judges are indeed permitted to form preliminary views, these should not unduly influence their final decision and should always be open to revision based on the evidence presented. In my case, I would argue that the Judge has shown an unwavering commitment to their initial views regardless of new evidence or arguments, which could constitute actual bias.
99.Again, I refer you to Johnson v Johnson Citation: (2000) 201 CLR 488, where the Court held that a fair-minded observer must reasonably apprehend that a Judge might not bring an impartial mind to resolve questions they are required to decide for a successful claim of apprehended bias.
100.This case provides the test for apprehended bias. In my response, I would argue that based on my experiences and observations during the proceedings, a fair-minded observer could reasonably conclude that the Judge might not bring an impartial mind in deciding this case.
101.Then looking at Galea v Galea Citation: (1990) 19 NSWLR 263 at 278-279, the court affirmed the principle of Judicial impartiality and added context about Judges expressing preliminary views.
102.This case supports my argument in my case by providing additional context on Judicial conduct regarding expressing views during proceedings. I can use this case to argue that while judges can express preliminary opinions, those opinions should not impede their ability to make impartial judgments based on all presented evidence. As an example, during the mother’s cross-examination, she was asked a question about the children dealing with losing contact with their father and, before the mother could answer, the Judge said “I am sure you would get some grief counselling for them wouldn’t you [Ms Belkis]. This made me feel completely overshadowed and abandoned with no hope of any sort of fairness.
103.Finally, Garrett & Freeman (No 3) [2007] NSWLEC 139 reiterated principles around Judicial conduct and expressions of preliminary views during proceedings. Similar to Galea v Galea, this case provides further support for my argument surrounding Judicial conduct and potential bias. I can use it to highlight instances where I believe the Judge's expressed views have crossed into prejudgment territory.
104.With regard to paragraph 27 where Opposing Counsel cites VFAB v the Minister for Immigration and Indigenous Affairs Citation: (2003) 131 FCR 102, in this case, the Court held that occasional displays of impatience and irritation by a Judge will not amount to a disqualifying bias. Momentary outbursts and misunderstandings in the often-stressful work of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator.
105.The relevance of this case to my situation is that it provides clarification on what constitutes judicial bias. According to this precedent, occasional displays of impatience or irritation from a Judge do not necessarily equate to bias.
106.However, my allegations go beyond occasional displays of impatience or irritation. I allege consistent prejudicial behaviour and decisions against me that I believe demonstrate a lack of impartiality. Furthermore, my allegations are not related to momentary outbursts or misunderstandings but concern persistent patterns of behaviour and decision-making that I believe show an unfair bias against me. As an example: when I was speaking to the Court about the new psychological evidence of the mother, other than [Mr N], no one else had read through it. As such, the Judge was uninterested and impatient while I was trying to convey the importance of what I had found. In a final act to try and placate me more than a desire to openly listen, the Judge told me that I “had 2 minutes summarize why the new documents were misleading”.
107.I had tried to summarize my notes as succinctly and quickly as possible and I was then cutoff. The Judge then asked [Mr N] if he might have another look at the files, particularly the page that I had quoted, to see if I was accurate and provided no time limitation. Later that evening [Mr N] was able to ‘copy and paste’ the section I was trying to summarize that was not only longer and more in depth, it read somewhat differently from the way I had read it out in Court in my allocated time. Consequently, the following day, the Judge accused me on Contempt of Court which was not only unfair, it was highly demoralizing and inappropriate.
108.Therefore, while VFAB v the Minister for Immigration and Indigenous Affairs provides important context about what constitutes judicial bias, it may not fully apply to my situation given the nature and extent of my allegations. The key distinction lies in the persistence and pattern of alleged bias in my case versus the "momentary outbursts and misunderstandings" referred to in VFAB v the Minister for Immigration and Indigenous Affairs.
109.As such, while I acknowledge the ruling in VFAB v the Minister for Immigration and Indigenous Affairs, I maintain that my allegations warrant serious consideration due to their ongoing nature and potential impact on my case's fair adjudication.
110.With regard to paragraph 28 where Opposing Counsel cites Antoun v R Citation: (2006) 224 ALR 51, the court maintained that judicial officers have the authority to warn parties of the likely outcome if they pursue a certain course of action. This includes expressing robust terms to parties and their lawyers about submissions or actions that are deemed hopeless, a waste of time, or destined to fail.
111.In the context of my case, Opposing Counsel is using this precedent to justify the Judge's conduct and argumentation in dealing with my application for recusal. He argues that what I perceive as bullying or bias is simply the Court performing its duty in managing proceedings and guiding litigants. However, I would argue that there is a significant difference between providing guidance and prematurely forming an opinion about a party's case. While Antoun v R supports judicial intervention for guiding proceedings, it does not validate forming prejudiced views or displaying partiality, which is what I allege.
112.Furthermore, it is worth noting that although robust exchanges can occur in courtrooms without constituting bias, such exchanges should not result in a party feeling unduly targeted or disadvantaged – as has been my experience in this case.
113.Finally, I must consider whether the Judge’s comments have crossed the line from ‘candid judicial speech’ into creating an apprehension of bias. This distinction is crucial and forms the basis of my application for recusal – which alleges not merely robust judicial management but partiality and bias against him.
The Task of the Father
114.In regard to paragraphs 27-29 (noting that the previous section ended in paragraph 28 with the sloppy copy paste approach of Opposing Counsel) I direct you to Re JRL; Ex parte CJL (1986) 161 CLR 342. This case provides the basis for the apprehension of bias test in Australian law. The High Court held that a Judge should not sit to hear a case if a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide. The ruling in this case is relevant because it establishes the test for apprehended bias, which I have alleged. Like in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, this High Court case held that whether there is an apprehension of bias should be determined by considering what a fair-minded lay observer might reasonably apprehend in all the circumstances of the case. This decision is relevant as it further clarifies the test for apprehended bias and how it should be applied.
115.As per Johnson v Johnson (2000) 201 CLR 488, the High Court reiterated that a Judge must not only be impartial but also appear to be impartial, and that allegations of bias must be established on strong evidence. However, they also recognised that Judges have some leeway to express their opinions during proceedings without giving rise to an apprehension of bias. This decision could be used by me to argue that while Judges may express opinions, my perception of bias was reasonable due to particular conduct or comments by the Judge.
116.In response to Opposing Counsel's argument about failing to provide transcripts; transcripts are not essential to establish bias at the application stage. I would argue that bias can be established at any stage and through other means such as affidavits outlining specific incidents or comments made by the Judge which gave rise to an apprehension of bias.
117.I would also argue that my perceptions and feelings are valid considerations in determining whether there was an apprehension of bias.
118.Regarding Opposing Counsel's assertion that the test concerning apprehended bias similarly fails, I would contend using precedents like Re JRL; Ex parte CJL, Ebner v Official Trustee and Johnson v Johnson as my allegations do meet the necessary threshold. I have experienced instances where I believe there was a lack of impartiality by the Judge, and these instances should be given due consideration when applying the test for apprehended bias.
The Actual Complaints
119.With regard to paragraphs 30-31 in response to the Opposing Counsel's argument of my complaints:
a.As to due process and procedural fairness not being followed, Counsel mischaracterizes my position. I have not objected to the procedural steps taken by the Court but rather to the fairness and impartiality of its application. This is a legitimate concern and reflects our system's fundamental commitment to justice which is clearly established in the case of R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
b.On allegations of bullying, it is not for the Opposing Counsel to determine whether these allegations are supportable or not. The test for bias, as laid out in Johnson v Johnson [2000] HCA 48, is whether a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case.
c.In relation to complaints about matters not in evidence and which were inadmissible, it is incorrect that such matters cannot form part of a recusal application. The Court has wide powers to admit evidence that would otherwise be inadmissible if it is relevant to determining whether there is a reasonable apprehension of bias as per Rogers v The Queen [1994] HCA 42.
d.Concerning a 'prejudicial narrative', this refers to my contention that certain assumptions or conclusions appear to have been made by the Court without proper evidentiary basis. While courts must indeed make determinations based on evidence presented, where there appears to be a predetermination or prejudgment, this can give rise to an apprehension of bias, as was found in Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
e.As for an interim determination being made against my favour, this alone does not establish bias but depending on how that decision was arrived at could potentially contribute towards an apprehension of bias if it appears that the decision was made prematurely or without proper consideration of all relevant factors (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17).
120.Thus, contrary to Opposing Counsel’s argument, my complaints do not fail but rather, raise serious concerns about procedural fairness and impartiality that warrant careful consideration by this Court.
121.With regard to paragraph 32 opposing counsel has raised several points concerning due process which I will address as follows:
a.While it is true that I was permitted to make applications during the proceedings, the fact that they were repetitively unsuccessful does not equate to me being offered due process. To ensure fairness and justice, it's important to consider that each application should be assessed on its own merits rather than being prejudiced by previous unsuccessful attempts.
b.Opposing Counsel has critiqued my focus on his own view of due process; however, this is a crucial aspect in any legal proceeding. My perceived view of due process might differ from that of a legal professional, but it does not mean it is less valid or relevant. Furthermore, the label of an 'experienced litigant' can imply an unfair bias against me in court proceedings.
c.The fact that I have made numerous applications and received several (3, not 10) cost orders against me does not indicate apprehended bias on my part, but rather an unyielding determination to seek justice and fairness in my case.
d.My understanding of equity should not be dismissed as wrongheaded but should be considered within the context of my experiences within these proceedings. My complaints about lack of punishment for others' perceived wrongdoing are valid concerns in ensuring a fair trial. As an example, if the ICL can lie to the Court and then I provide the Court with the evidence and then the Court says and does nothing to the ICL on their own merits, is that equity or is it ‘one rule for some and another rule for others’?
e.Opposing Counsel's assertion about my 'willful lack of knowledge' is unfounded and assumes intent on his part to remain ignorant about legal procedures and roles within the Court system, which is prejudicial.
f.Whether findings have been made or not, it is important for a fair-minded lay observer to consider all aspects of the case without bias or prejudice - including the potential impact on my feelings and personal experiences.
g.As for the alleged admission of an affidavit that was not admitted - this matter should be clarified by reviewing Court records and transcripts rather than dismissing it as untrue based solely on opposing counsel's claim.
122.This analysis can be supported by the case law "Johnson v Johnson (2000) CLR 488" where Justice Kirby noted that a reasonable member of the public is neither complacent nor unduly sensitive or suspicious but would need to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.
123.With regard to Counsel’s paragraph 33, I refer you to Johnson v Johnson (2000) 201 CLR 488 Citation: [2000] HCA 48, where the High Court held that the concept of 'bias' must be considered from the perspective of a reasonable observer who is informed and fair-minded, and not unduly sensitive or suspicious. It was further noted that Judges are expected to bring an impartial mind to the resolution of the questions they are required to decide, but they are not required to have no prior thoughts on the subject matter.
124.Relevantly, my case provides a framework for understanding 'bias' from a legal perspective. The Opposing Counsel's argument that my allegations of bullying are "not supportable" could be challenged by this perspective. If can demonstrate that a reasonable observer might perceive bias in the Judge's conduct, I may have grounds for recusal.
125.In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Citation: [2014] NSWCA 98, the NSW Court of Appeal held that allegations of actual bias require clear proof and should not be made lightly. It was held that the appellant had to prove that the primary Judge was so committed to a conclusion already formed as to be incapable of alteration, regardless of any evidence or arguments presented. This case reiterates the high standard required to establish actual bias in judicial proceedings. In response to Opposing Counsel's arguments, I argue that my complaints represent my attempt to meet this high standard rather than baseless attacks on anyone who disagrees with me.
126.As in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court held that an allegation of apprehended bias should be upheld if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to bear on the resolution of a question he or she is required to decide. This case provides guidance on what constitutes apprehended bias from a legal standpoint.
127.Using this case, I argue that his perception of being bullied by the court could lead a reasonable observer to believe there is potential for bias against me in these proceedings. I will provide clear evidence supporting my claims of bullying and perceived bias, demonstrating how these instances have affected the impartiality of the Court proceedings and my grounds for recusal based on these cases.
128.Regarding paragraph 34, Opposing Counsel is drawn to the attention of Briginshaw v Briginshaw [1938] 60 CLR 336, where the High Court of Australia held that in civil litigation, the standard of proof is a balance of probabilities. However, this does not mean that all matters are to be proved on a simple balance of probabilities. The gravity of the allegations made, the inherent unlikelihood of an occurrence of a given description, or the seriousness of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of a tribunal.
129.This case is relevant to my situation as it establishes that even in civil proceedings such as family law cases, where serious allegations such as bias are made, those allegations must be proven to a higher standard than merely on balance of probabilities.

130.In response to Opposing Counsel's argument concerning matters not in evidence:
a.Whilst it is true that I have referred to submissions and statements that were not formally put into evidence, I did so in an attempt to illustrate patterns of behavior and systemic issues that I believe have contributed to perceived bias in his case. In doing so, I was exercising his right to put forward all relevant material for consideration by the Court.
b.As an example: Counsel renders himself hypocritical as neither he nor the ICL adhered to their Case Outlies and not adhere to only that evidence already placed as part of their Tender Bundles. Although I understand the discretion allowed by the Judge to consider all manner of evidence, this tactic led to evidence that was being used against me, never being put to me before with proper warning and due process. Instead, it was used as a ‘trick’ to try and throw me. When I provided proper answers, I was mocked by the parties and the Judge; none of whom had been to war or served overseas yet felt that my explanation was so far-fetched, it deserved ridicule.
c.As for the "secret person" allegation, it may seem unusual but should not be dismissed outright. If there is indeed someone who can provide significant insight into potential bias in this case, their testimony could be crucial. It is important for all parties involved to maintain an open mind and respect due process. After 30 years in the [defence forces] and the conduct of 100s of formal investigations, I have no ability to merely ‘brush away’ important evidence or information anytime it suits me.
131.Overall, these arguments of Counsel do not make my application untenable; rather they highlight the complexity and high stakes nature of this matter which warrant careful consideration by this Court.
132.In regard to paragraph 35, in response to the Opposing Counsel's argument concerning the 'prejudicial narrative' complaint, it is important to clarify my position and provide relevant case law as follows:
a.When I refer to a ‘prejudicial narrative’, I am expressing my concern that the Court has formed a negative view of me based on unreliable or unsupported allegations. This might potentially affect the impartiality of its decision-making process. The concept of prejudicial narrative in this context can be understood as an overarching bias or prejudice against me that may influence the Court's perception and judgment of the case.
b.I believe that the Court should interrogate both sides of the case evenly. It is not a matter of delaying decisions but ensuring that they are made with due regard to all evidence and perspectives presented, including my own. I do not argue that my alleged deficiencies in empathy or insight and non-physical or financial acts of family violence should not be accounted for and learned from. Rather, I argue that these allegations have been overstated or misinterpreted, creating a prejudicial narrative against me in order to induce a desired outcome.
c.Concerning apprehended bias, while authorities make it clear that a Judge is not to remain ‘sphinx-like’, it is equally essential that they do not form conclusions prematurely without considering all facts and arguments (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). The fear here is not about the Judge's engagement, but about possible premature conclusions drawn which could potentially lead to bias.
d.In this context, Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380, might be a relevant case where Gleeson CJ at [11] stated "bias is an attitude of mind which prevents an impartial adjudication upon issues". In my case, so bad is the bias attitude that not even my children will be listened to or their older half-sister that has lived through this exact same treatment from the mother before. The result now: [Ms M] refuses to have any form of contact with her mother.
e.Furthermore, in Livesey v New South Wales Bar Association (1983) 151 CLR 288, Mason and Brennan JJ stated: "The apprehension of bias principle admits of the possibility of human frailty... Its application is as diverse as human frailty. Its application requires two steps: first, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits; secondly, there must be an articulation of the logical connection between that matter and feared deviation from deciding on its legal and factual merits."
f.Applying the above principles to my situation, it can be argued that there exists a logical connection between the perceived prejudicial narrative (matter identified) and feared deviation from deciding on its legal and factual merits. As such, not once since the commencement of these proceedings has [Ms M] or her stepmother been allowed to give evidence or even speak to CYPS since to do so may expose a floor in a matter where the merits warrant such investigation but the bias neglects the possibility.
133.Therefore, while I understand Opposing Counsel's argument regarding my complaints about a ‘prejudicial narrative,’ I respectfully submit that these complaints do warrant serious consideration by this Court.
134.With regard to paragraph 36 again I must draw Opposing Counsel’s attention to Ebner v Official Trustee in Bankruptcy, since in this case, the High Court established a two-step test to determine whether there is a reasonable apprehension of bias. Firstly, it must be established that the Judge is in a situation which might give rise to an apprehension of bias. Secondly, it must be determined whether this situation could cause a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided.
135.The relevance to my case is it provides the legal test for determining whether there is an apprehension of bias. In my case, I can argue that the Judge's decision to prefer the CYPS assessment and their refusal to make findings against the mother, despite my objections and concerns, could lead a fair-minded observer to reasonably apprehend that the Judge may not bring an impartial mind to resolving the issues at hand.
136.Furthermore, in Johnson v Johnson 201 CLR 488, the High Court held that occasional robust exchanges between a Judge and a litigant do not necessarily give rise to a perception of bias. The court also noted that Judges are not expected to remain passive during proceedings and may express preliminary views on issues at hand. This case is relevant because it provides guidance on interpreting judicial conduct during proceedings. I can argue that in my case, while there may have been robust exchanges between the Judge and the court room, this does not in itself establish bias or partiality on part of the Judge.
137.While in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 the High Court held that actual bias requires demonstration that a Judge was so committed to a conclusion already formed as to be incapable of alteration by evidence or argument. This case is relevant because it sets out the standard for establishing actual bias.
138.In my case, I argue that given my numerous unsuccessful applications and complaints, there may be grounds for arguing that the Judge was committed to a particular conclusion irrespective of any evidence or argument presented by me or, in this case, the [Region U] Police as the Judge made a clear and open statement in the Court that he did not believe that the mother as guilty of any crime against [X] and that it was more likely than not that [X] was lying.
139.In response to Opposing Counsel's argument regarding complaints concerning an interim determination, I would argue that my dissatisfaction with the Court's interim decision is not about personal unhappiness but rather about perceived procedural unfairness and potential bias in favoring certain evidence over others without clear justification or explanation. I would further assert that my repeated complaints are attempts to seek justice and fairness in proceedings where I believe both I and my children, have been denied these rights. Lastly, I would argue that even if expert evidence was against my position, it does not absolve the Court from treating me fairly and impartially as required by law.
Conclusion
140.In response to the conclusions of Opposing Counsel, in Livesey v New South Wales Bar Association (1983) 151 CLR 288, the High Court held that actual or apprehended bias on the part of a decision-maker could be a ground for setting aside an administrative decision. The Court established that even if there was no actual bias, the appearance of bias could be sufficient to undermine confidence in the impartiality of the decision-maker.
141.This case is relevant as it sets out the test for apprehended bias and provides a precedent for challenging decisions on this basis. This counters Opposing Counsel's argument that none of my complaints from any basis for recusal.
142.Further in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the court held that a Judge should not hear a case if there is a reasonable suspicion or apprehension from a fair-minded observer that they might not bring an impartial mind to the resolution of questions they are required to decide. This case is significant as it establishes the 'reasonable suspicion' test for apprehended bias, which applies in my situation. It can be used to argue against Opposing Counsel's assertion that there is no basis for recusal.
143.Then in Johnson v Johnson (2000) 201 CLR 488 the High Court ruled that judicial impartiality is an essential requirement for a fair trial and that Judges should not show favouritism or prejudice towards any party. This case is relevant as it underscores the importance of Judicial impartiality and can be used to argue against Opposing Counsel's contention that my complaints are without merit.
144.In these cases, it was determined that even an appearance of bias can be grounds for recusal, demonstrating that my complaints do have potential merit under Australian law. These cases highlight the importance of maintaining not just actual impartiality but also the appearance of impartiality in judicial proceedings.
Perhaps the most obvious omission from all of the Father’s submissions, noted further below, is that there is no reference anywhere about the need to bring a recusal Application promptly. This has not occurred here in any relevant respect. The matter generally, and the final hearing in particular, have been “on foot” for many months. The complaints by the Father, if I have understood them correctly, have been on display for quite some time. And most recently when invited to bring any recusal Application in the light of adverse comments about the Court, the Father formally refused to do so. Now, essentially at the end of the proceeding, he brings this Application. As canvassed below in more detail in the light of relevant authority, the failure to bring this Application much earlier in the litigation, almost of itself, is fatal to any prospect of success. Put another way: a litigant cannot effectively sit idly by harbouring multiple grievances about either processes or rulings and leave any claim for relief about any alleged grievances until well past midnight, so to speak. This is precisely what the Father has done here. Furthermore, the Father has very recently filed an urgent Application in a Proceeding (on 20^th September 2023). He seeks that this urgent Application be dealt with by Judge Neville because of my “continuity of knowledge of this case.” To say that this is a curious turn of events, and quite inconsistent with the recusal Application is something of an understatement.
It remains only to note the following from the Father’s submissions in reply. First, he noted how frustrated he had been in the early part of the trial with his then lawyers. He said that he sensed the frustration of the Court with them also. Again, how this related to the recusal Application was unclear.
Secondly, after some further discussion, the Father confirmed or agreed that the Court had made no “rulings” on any relevant subject.[4]
[4] T 50 & 51.
Thirdly, the Father strongly suggested that there was, apparently, not sufficient time to explore all of the evidence, which seemed to be primarily focussed upon records about the Mother’s psychological assistance from the B organisation. As put rather elliptically by the Father:[5]
[5] T 50, 51 & 52.
HIS HONOUR:   Do you accept, though, that I’ve made no formal rulings on such things, for the reasons that Mr Robinson has said; namely, the case is still in train, the evidence is not closed, there was meant to be today more evidence and, therefore, I can’t and haven’t made any formal rulings.
[MR FARRINGTON]:   Yes. Your Honour ‑ ‑ ‑
HIS HONOUR:   Do you accept that?
[MR FARRINGTON]:   I’m not looking into the future, your Honour. I’m looking ‑ ‑ ‑
HIS HONOUR:   No, no, no. As of today. I haven’t made any rulings about matters of evidence of, you know, who I believe or don’t believe or what or what weight will be given to this as opposed to that. I haven’t made any rulings; correct?
[MR FARRINGTON]:   You haven’t. And I’m not standing here to try and make you make a particular ruling.
HIS HONOUR:   No, no, no. No. I’m just saying that I haven’t made any rulings.
…
In breaking down the test to my speak, I did it sort of like: did I fear or do I fear that the judge’s mind was already made up and, no matter what I said, I did not believe that I would get a fair hearing. That’s how I’ve sort of approached it and looked at it and wanting to be as open and as fair as possible on behalf of the kids. In talking about the principles and the case law, I know you all know this stuff backwards, I don’t, but, coming out of McCall & Clark:
It’s essential in any legal proceedings that all relevant evidence is thoroughly examined to ensure a fair outcome. To do otherwise would be to invite appeal, thereby necessarily extending court time.
Well, yes, we’re here today and I understand that. But ‑ ‑ ‑
HIS HONOUR:   And that’s what we were going to do today. As Mr Robinson has said, we were going to get into ‑ ‑ ‑
[MR FARRINGTON]:   Well, we weren’t, your Honour. We were going to get into some of the evidence and ‑ ‑ ‑
HIS HONOUR:   We were going to do – we were going to get into more evidence. Yes.
[MR FARRINGTON]:   Your Honour, we were going to get into some of the more whereas what I would have been asking for and asking for is for all of the all so we can all know the picture and ‑ ‑ ‑
HIS HONOUR:   All of the all?
[MR FARRINGTON]:   I made that up. It’s not a real term. But rather ‑ ‑ ‑
HIS HONOUR:   I thought you were channelling our friend Donald.
[MR FARRINGTON]:   Not yet.
HIS HONOUR:   That’s Rumsfeld. Not the other one.
[MR FARRINGTON]:   But the frustration I have, your Honour, is I pointed this problem out to chambers. I said ‑ ‑ ‑
HIS HONOUR:   Sorry, which problem?
[MR FARRINGTON]:   The one about the subpoena not being broad enough to capture all the documentation that came back from the mother’s new treating psychologist and it was spat back to me saying, “No”, and, “Don’t personally attack the ICL.”…
…
In my case, my argument is I believe that the court has already formed views about my mental health, character, trustworthiness, and reliability from as far back as 2019 and that’s how I honestly feel.
HIS HONOUR:   And, again, upon what basis? Like in terms of ‑ ‑ ‑
[MR FARRINGTON]:   Yes.
HIS HONOUR:   ‑ ‑ ‑ rulings, and so forth, like, I’ve made no comment again – I know this is terribly repetitive – I’ve made no comment or ruling, for example, on anyone’s credibility. So, just taking that aspect, upon what basis, apart from feeling, do you make that submission?
[MR FARRINGTON]:   At the end of day 1, when we were looking at getting [Mr F] back and we finally figured out, after day 1, the way that the excellent Mr Haddock did his work was to bring my credibility into such a shambles that, when he was then ‑ ‑ ‑
HIS HONOUR:   Sorry to interrupt. Sorry to interrupt. But, (a), that’s your perception, obviously, of whatever Mr Haddock did or didn’t do; but ‑ ‑ ‑
Again, the Father came back to the “governance” issue and the Court’s apparent responsibility for the conduct of others, regardless of what the Court actually knew or not about such matters. He said:[6]
[MR FARRINGTON]: To take it like that, your Honour, is somewhat flippant when what I’m saying is that, if you’re running a ship, you run it your way, and if anyone decides that they’re going to do something wrong, they already know what the punishment is that you’re going to give them. That’s how I used to run my units. So if they decide to do something wrong, I would just give them the whole thing. But if there is a situation where you’ve got someone as senior as an ICL doing what I say she does, has done, it – to me, it feels contemptuous on your behalf and that’s how I feel she has treated this courtroom and your position. That’s how her actions made me feel.
[6] T 56.
To this I responded:[7]
HIS HONOUR: ‑ ‑ ‑ (a), lawyers who appear before the court, (a), they’re not my staff and that their primary duty – they’ve actually got a primary duty to the court about proper evidence, truth, all that sort of thing, but they’ve also got an understandable duty to their clients, right? Secondly, though, a number of times today, where you’ve referred to various ADF leadership manuals, and so forth, would you accept, though, that, to transpose an ADF leadership paradigm to the court or to civilian life, just doesn’t apply?
[MR FARRINGTON]: I do, your Honour, which is why I put so much evidence to you and in front of you and for you and at each and every turn it was either refused or ignored. If what you were saying was the only case – and I thought about that a lot – we wouldn’t be here. But because I put that information in front of you, including when the ICL did not meet with the children, on your orders – and I laid it out, showed it, everything – still ignored and, your Honour ‑ ‑ ‑
HIS HONOUR: But again – and sorry to interrupt – but, by definition, as I said earlier – and then Mr Robinson mentioned again – the title – the statutory office, under the Family Law Act, requires them to be independent so that it’s their judgment call as opposed to me or anyone else directing the ICL because otherwise that would defeat the purpose of them being independent.
[7] T 57. See the Father’s further comments about his “holistic view” of his experience: at T 57 & 58. He made further remarkable comments about certain lawyers (notably ICLs), apparently, having some secret access to me and my Chambers, some sort of “open door policy.” Unsurprisingly, I refuted such outrageous contentions. T 59.
Finally, I need only note that the Father had a certain pre-occupation regarding the Court’s recent decision to remove the children from his care and place them with the Mother, and to rely upon the CYPS Report as the basis for doing so. It was said by the Father that this decision and preference for the CYPS material showed relevant bias.[8]
[8] T 60.
The Mother’s submissions
Because the Father’s Application in a Proceeding was filed so late and brought on for hearing so urgently (in anticipation of perhaps the final hearing being able to be finalised at least in terms of evidence), the Mother was only able to file very brief written submissions, which were in the form of an Aide-Memoir. Those quite summary submissions were as follows:
1.Counsel is aware of an application filed by [Mr Farrington] that fails to comply with the Rules of Court, fails to seek appropriate leave, seeks Orders outside of the Court’s power and levels allegations of, at times, actual and at other times apprehended bias.
2.To address the myriad flawed complaints asserted by the father in his misconceived, repetitive, and sometimes tangential application, these submissions are prepared to save valuable trial time. That is against the background where the trial has already had to be extended, not as the father alleges because of the mother, but on the application of Counsel for the father, given her own decision not to continue to cross-examine the expert.
3.In preparing them, Counsel has attempted to distil the complaints and deal with them in a manner that is forthright and direct rather than outlining the flaws in each paragraph. Whilst Counsel’s primary position is that the non-compliant application should simply be dismissed, especially where the re-agitation of certain matters already dealt with is plainly an abuse of process by the father, these are prepared with an acknowledgment that a recusal application is an extraordinarily serious matter.
The Obvious Difficulty
4.Much of the difficulty the father faces is accusing the Court of having ‘placed weight on’ or ‘found’ things when that is simply untrue. The Court has had the judgment process frustrated by a re-opening occasioned by the father’s breach of the Court Orders. This is a particularly apt point when considering that in circumstances where no final submissions were made by the Independent Children’s Lawyer as required because of the re-opening, much of the father’s complaint faces difficulty. To be clear, the Court has made an interim decision, has done so using the evidence of care and protection services whilst considering the father’s lengthy arguments, and was at pains to make no specific findings against the father. The Court performed the function it is enjoined to do and often does on an interim hearing.
5.The father cannot reasonably suggest that the Court, in doing so, acted in a way that founded an apprehension of bias under the relevant tests rather than his personal beliefs. That is particularly so where the opportunity to raise that matter was put to him fairly and squarely by [Dr FF] (who, because she clarified an issue important for her client, he attacks and accuses of bullying, a scurrilous and baseless allegation). The father has not appealed that decision. The father simply does not like it; one can sympathise to a point. However, the constant attacks by the father against anyone and everyone he perceives as disagreeing with him in the document are deeply disturbing and consistent with the mother’s evidence of his coercive and controlling nature. They are reminiscent of the attacks on the Independent Children’s Lawyer that were overwhelming and unrelenting, yet never met with the courage of an application if they were genuinely believed.
6.Otherwise, absent the father having a final decision from the Court, it is rather unclear how he can opine to what the Court has ‘found’ or ‘put weight on’ in circumstances where the Court has not had the opportunity to make findings or place weight upon evidence.
The Complaints Concerning Misfeasance, Res Judicata, Anshun estopppel, Constitutional Complaints, and Complaints Concerning the ICL
7.Much ink is spilled by the father concerning these complaints. They can be distilled as follows:-
a.A complaint about constitutional matters at [14]. The issue is nonsense given the referral of State power in the creation of this Court, the terms of the Family Law Act 1975 (Cth), and indeed many of the documents the father goes on to cite;
b.From [19]-[34], the father complains about res judicata and Anshun estoppel. The submissions are flawed where it is well-established that these principles do not apply in parenting matters as outlined articulately in Nygh J said in McEnearney & McEnearney [1980] FLC 90-866 and Warnick J said in SPS & PLS [2008] FLC 93-363. Quite aside from that, if the principles were to apply, the father’s application would have been dismissed, and so it is difficult to understand how a determination of those matters if they did apply, which has effectively been in his favour, is relevant. Whilst the father may now object to his own application being dealt with by the Court. It is a position that is puzzling. The references to sections of the Act that do not apply and strange allegations about threats are simply unhelpful.
c.The father complains about a ‘failure to respect Article 18 of the ICCPR’. This is a confused allegation concerning ‘badgering and intimidation’, which is extraordinarily serious yet never explained. The father appears to object to people making legitimate submissions on behalf of their client in an adversarial system and suggests this somehow infringes Article 18.2 of the ICCPR. The argument fails entirely to understand the legal process and the ICCPR. The argument is nonsense.
d.Complaints regarding the ICL are scattered throughout the father’s material. The complaints are interwoven with complaints about everyone else in the proceedings and their conduct. Many are baseless assertions the father simply does not explain. Some arise to allegations of conspiracy between the ICL and the mother’s lawyers, an extremely serious allegation of misconduct for which no evidence is advanced and is notably not protected by the advocate’s immunity. At one point, the father ascribes blame to the ICL that his lawyers had negligently chosen not to read subpoena material prior to a trial. Many are complaints that the Court allowed people to run the cases that they are entitled to run at law, but the father disagreed with them. The vast majority are canvassed at [117] to [147]. They are nonsense, expose a lack of understanding of tort law or advocates immunity, appear paranoid to be reserved, and are irrelevant where the ICL is no longer part of these proceedings and did not make final submissions. Where the ICL did not make final submissions, it is rather unclear how there can be apprehended bias because of any view of the ICL on the relevant tests. Certainly, the father could not satisfy them. There also appears to be a lack of understanding that the ICL was forced to withdraw because the father chose to make her a witness in proceedings because of his disagreement with her concerning [Y], and then he failed to call the ICL when offered the opportunity by the Court- perhaps afraid that the truth would out, or it would be exposed as a deliberate tactic to neutralise what was perceived as an enemy.
The ’Request for Judicial Recusal’
8.The father asserts that there should be a recusal. He effectively provides written submissions in his affidavit. They fail to appreciate large and important parts of the law and appear to refer to secret witnesses that the father does not name. Some are simply strange ageist personal attacks that have no foundation. All complaints suffer from a common deficit- the Court has made no findings that would form the basis of a recusal.
9.The Court would easily dispose of the inferences of actual bias. There is no evidence led by the father that even approaches the required standard in the authorities.
Relevant Law
10.The law in relation to a disqualification is well settled.
11.An allegation of actual bias is a grave and exceptional allegation, as held in the matter of NADR v Minister for Immigration and Multicultural Affairs (2002) FCA 361 (“NADR”). In that matter, Justice Emmett observed at paragraph 16:
A finding of actual bias is a grave an exceptional matter. The accusation of such bias must be firmly established. It cannot be sufficient to establish actual bias to invite a court to find that would have come to a different decision from the decision-maker. Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias.
12.Similarly, the decision of Reid v Commercial Club (Albury) Ltd (2014) NSWCA 98. the NSW Court of Appeal, of whom Justice Emmett was a member, conveniently summarised from paragraphs 68 to 69, the relevant principles as follows:
A finding of actual bright bias is a grave matter. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.
Where the issue is actual bias in the form of pre-judgement, the appellant had to establish that the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
13.Their Honours in Reid also referred to Justice’s Gleeson CJ and Gummow J’s observations in M Minister for Immigration and Multicultural Affairs v Jia Legeng 205 CLR. 507 (“Jia”), noting that “the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”.
14.As His Honour Justice Hayne opined in Jia from paragraphs 185 to 186, there are several elements to a claim of actual bias, namely:
a.the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case;
b.the decision-maker will apply that opinion to the matter in issue; and
c.the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
15.Their Honours in Reid stated Justice Hayne’s opinion in Jia that allegations of actual bias through prejudgement often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, “it does not follow that the evidence will be disregarded”.
16.With respect to the principles relating to apprehended bias, Justice Moore’s decision in Hartnett & Sampson [2008] FamCA 75 sets out the principle. It is as follows: “whether the fair-minded observer would conclude the judge had formed opinions which might affect his or her determination of outstanding matters”.
17.As the Full Court opined in Isbester v Knox City Council (2015) 255 CLR in applying the test for apprehended bias, it is important to emphasise that the fair-minded lay observer “is taken to be aware of the nature of the decision in the context in which it was made, as well as to have knowledge of the circumstances leading to the decision”. This statement is a further refinement of his Honour Justice Kirby’s decision in Johnson v Johnson (2000) CLR 488 at paragraph 53:
The attributes of the fictitious bystander to whom the courts defer have been variously stated. Such a person is not a lawyer. It neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily need to be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the very strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Finally a reasonable member of the public is neither complacent nor unduly sensitive or suspicious (emphasis added).
18.In the 1976 High Court decision of R v Watson (1976) 136 CLR 248 their Honours opined:
The view that a judge should not hear a case if in all the circumstances the parties or the public might reasonably suspect he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct principle. It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend all suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.
19.This last position was further explored in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337,
In case of real doubt it will often be prudent for a judge to decide whether or not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view of the matter of disqualification.
20.Other relevant decisions are, Anae v R [2018] NSWCCA 73.(“Anae”) and that of the Family Court Appeal division in Huda & Huda & Laham [2018] FamCAFC 85.(“Huda”).
21.In Anae, the test as expressed begins at paragraphs 50 and reads as follows:
The test for apprehended bias is uncontroversial and the relevant principles were summarised by this court in Tarrant where actual bias is not alleged. The legal test as expressed in Johnson v Johnson requires that the court is satisfied that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
22.Their Honours subsequently state that this double test is by no means easy to apply and its application requires attention to four discrete elements, which are as follows:
First there is the postulate of the fair-minded lay observer. Their Honours comment this reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not the capacity of a judge.
Secondly, the test is being described as ‘objective’ by which it is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias and assessment of the judge’s own state of mind.
Thirdly, there is said to be as two-stage process required; it is necessary to articulate ‘the connection between the events giving rise to the apprehension of bias through pre-judgement and the possibility of departure from impartial persistent decision-making’.
Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court not need not be satisfied that the fair-minded lay observer would have such an apprehension, nor need any apprehension in the mind of the observer involve a state of satisfaction on the probabilities. Apprehended bias of the trial Judge was found to exist.
23.In the third matter of Huda, apprehended bias was not found by the Full Court of the Family Court, however procedural unfairness was found based on the Trial Judge’s interventions, the number of interventions, the length of the interventions, the circumstances of the intervention which led to procedural unfairness but not bias.
24.A more recent, and respectfully pithy, summary was given in Newett & Newett (No. 6)[2022] FedCFamC1A 70 at [132], actual bias requires demonstration that the primary judge was:
... so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding is a grave matter, which should not be made lightly and requires cogent evidence (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).
25.A more throughgoing examination than the above was also outlined by the High Court at [11]- [13] of Charisteas & Charisteas (2021) 273 CLR 289,
26.Of particular assistance in this matter are the observations made in Johnson v Johnson (2000) 201 CLR 488, Galea v Galea (1990) 19 NSWLR 263 at 278-279 and Garrett & Freeman (No 3) [2007] NSWLEC 139 to the effect that the focus of the test is whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial mind to the resolution of questions the Judge is required to decide. Further, and importantly, those authorities provide that it is not in doubt that judicial officers are not obliged to remain ‘sphinx like’ during the course of proceedings before them. The law permits a trial judge to express tentative or preliminary views without taking such expressions to indicate prejudgment, and trial judges “are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented”.
27.The authorities have further recognised that there can be robust exchanges between the bench and litigant, which do not constitute a reasonable apprehension of bias. In VFAB v the Minister for Immigration and Indigenous Affairs (2003) 131 FCR 102 at paragraph 81 Kenny J said: -
“Occasional displays of impatience and irritation, whether justified or not, will not amount to a disqualifying bias... Momentary outbursts and misunderstandings in the often stressful work of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator”
28.Numerous authorities had given further support for these sentiments. This Court is a busy trial Court. From time to time, judicial officers will find it necessary to warn parties of what is the likely outcome if they pursue a particular course of action; indeed such indications are to the benefit of the self-represented litigant. In Antoun v R (2006) 224 ALR 51 at paragraph 27, Kirby J had this to say in respect of that practice:
“For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech…”
The Task of the Father
27.It is for the father to satisfy these tests.
28.The test of actual bias is the Judge’s state of mind, which can only be evidenced from the transcript. The father has chosen not to provide the transcript of the interim hearing or of the decision. The application must therefore fail.
29.The test concerning apprehended bias similarly fails.
The Actual Complaints
30.The complaints of the father are a confusing and repetitive morass. They appear to fall into the following broad categories:
a.Complaints that ‘due process’ was not followed;
b.Complaints that the Court ‘bullied’ the father;
c.Complaints that the Court did not consider matters not in evidence and which were inadmissible;
d.Complaints that there is a ‘prejudicial narrative’; and
e.An interim determination was made that was not in the father’s favour.
31.All of the above fail.
32.Concerning due process:
a.The father was offered due process. Indeed, his counsel was permitted to make identical applications during the trial where the first had already failed, and the trial was ultimately prevented from concluding on the father's application.
b.The difficulty is that the father has focussed on his own view of due process and has done so in the way a self-represented litigant may do, which is understandable but not the proper focus. It is a pity that the father finds the descriptor of him as an experience litigant offensive, but it is a neutral and common description.
c.Suggesting there is apprehended bias where he is implored to seek legal assistance, having made more than ten unsuccessful applications in proceedings and resulting in more than seven costs orders against him which he now seeks to overturn (an interesting position of someone espousing res judicata) is simply wrongheaded.
d.The complaints about equity demonstrate the father does not understand equity, particularly where he has been accorded more than sufficient procedural fairness. Indeed it is in this sense the complaint of the father is most inapt- he complains about lack of punishment for others' perceived wrongdoing where time and again he has breached his undertaking to the [Region U] Magistrates Court and has breached Orders of this Court and is yet to suffer a penalty.
e.Much of the father's complaint appears to stem from a wilful lack of knowledge of the proper operation of the Act and of law alongside a fundamental misunderstanding of the role of the ICL. Indeed, much of the father's repeated complaint appears to focus on the ICL not doing what he personally wanted her to do and tries to cloak that in some kind of issue for the Court. The Court cannot control the ICL in the manner the father seems to think it can, and it is difficult to see how it could do so when the father made no recusal application despite being represented by counsel and being given an opportunity.
f.The father proceeds on a wrongheaded assumption that findings have been made and seems to ignore the fact that the CYPS assessment was hardly based on the input of the ICL but after careful analysis of interviews and evidence. The father has the records of the supervision session conducted as part of that assessment. Whilst the father may be aggrieved by the finding concerning his abuse and his other shortcomings, the fair-minded lay observer is not so burdened by the father's hurt feelings and need to avoid responsibility, a trait highlighted within the appraisal.
g.A particularly egregious submission by the father comes from an alleged admission of an affidavit that was not, in fact, admitted. Like many of the submissions made by the father, this is simply untrue.
33.Concerning bullying:
a.The father's complaints about bullying are not supportable on any view of the conduct of this matter. The converse has been the father's repeated and baseless applications which demonstrate the pursuit of his own personal views at all costs and against all evidence. An apt summary would be that anyone who has disagreed with the father is not only wrong but liable to the most vicious of personal and professional attacks.
b.A proper adversarial process in which matters are sought to be clarified concerning his position on recusal is hardly bullying. The position is simply trying to accord the father and everyone else procedural fairness.
c.Fortunately, the reasonable bystander is not the father and is not so burdened and is taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.
d.The allegation of the father concerning bullying sits most uncomfortably with his stated intention to 'vehemently' appeal and write a complaint to a Chief Judge that does not exist and pursue an application to the Administrative Appeals Tribunal, which has no jurisdiction at all so that would simply be an application of the father that was doomed to failure.
34.Concerning matters not in evidence:
a.The father seeks to rely on an assortment of submissions to government enquiries and statements in review. These matters were not in evidence. They have not been put into evidence. They could not be admitted into evidence properly as extrinsic materials. The Court cannot simply take notice of random things the father thinks it should, nor is bias somehow to be asserted to be found because various things that were not put before the Court the father somehow thinks the Court should understand. The position is untenable.
b.The father makes a bizarre allegation concerning some secret person who will advance some claim of apprehended bias. It is a strange and disturbing submission, similar to his new attack on the paternal grandfather whose Svengali-like powers he now alleges are used to control the bench.
35.Complaints of a ‘prejudicial narrative’:
a.No one could have any understanding from the father’s application what this phrase is meant to mean;
b.The father seems to think the Court should interrogate the mother’s case. It undoubtedly will if it is ever permitted to make a decision that is not delayed by a breach of Orders by the father. Conversely, the father seems to think that none of his patent deficiencies in empathy or insight and his acts of family violence should be accounted for, but that does not seem to be a basis for apprehended bias;
c.It is unclear how a complaint of this nature could ever find apprehended bias, especially where the authorities make it clear the Judge is not to remain ‘sphinx like’.
36.Complaints concerning an interim determination:
a.The father being unhappy does not found apprehended bias. Had the father listened and attempted to understand the decision, he would have reflected that the decision preferred the evidence of the CYPS assessment, referenced it carefully, and was at pains not to make findings against the father. There was no other option for the Court if it was to follow [100] of SS & Ah [2010] FamCAFC 13; and
b.In each instance, the father’s complaints are a self-justifying and concerning repeat of what he has already asserted unsuccessfully. Whilst doubtless, the father believes his case is straightforward, the independent fair-minded observer is not burdened by the father’s wrongheaded convictions but would take a balanced view of the evidence and, in particular, the careful expert evidence which was against the father’s case.
Conclusion
37.None of these complaints found any form of basis for recusal. The application is entirely bereft of merit and is an abuse of process. It is flawed from beginning to conclusion. Notably, many of the father’s Orders Sought to progress the matter could never have been made if his application was successful, and the idea that the mother should be ‘declared an unreliable witness and a vexatious litigant’ demonstrates a determination to give the mother no ‘due process’ at all and to fail to reflect that if the history was examined alongside the numerous costs orders the vexatious litigant would appear to be the father. The situation is unfortunate, but there is no basis for recusal. If anything, the father’s quite unbalanced affidavit would give the Court pause for concern about the father’s mental health.
The Director-General’s submissions

The Director-General’s submissions were direct and brief, and in the following terms. It is best to let them speak for themselves:
[MR N]: For over 20 years I have worked in a space where I have focused on children, and worked with an agency that is guided by the best interests of children. But when I read this application I cannot help but think of a young child that is perhaps throwing a tantrum and not getting what he wants and going to another parent. It is astounding that an allegation has been made that this court has allowed, or has any control over, an independent children’s representative and some allegation that the ICL, being [Ms BB], could possibly pressure the Director General to affect not one but two appraisals with regards to safety of children.
To suggest that the Director General’s appraisals and the conclusions that are drawn were tainted or fundamentally flawed due to any form of communication by an independent child representative is deeply flawed and incredibly concerning, and, to be frank, your Honour, offensive. Section 8 of the Children and Young People Act is the guiding section that the Director General looks to, which is, effectively, the paramountcy principle. That paramountcy principle indicates that at all times the Director General must prioritise and place at paramount the best interests of children and young people in the work that we do.
To suggest that we have completed appraisals and stepped aside from that paramountcy principle is firmly rejected, is incorrect. I have no doubt that [Mr Farrington] is distressed by any proceedings in relation to his children. I don’t envy him in is position at all. I have no doubt that [Mr Farrington] is distressed or frustrated by the conclusion of the second appraisal, being that he is not willing and able to care for and protect his children from abuse and neglect. Those feelings are not a valid reason to make a recusal application. It is not required of any court to step into the mind of each person at the bar table or each parent and to account for their feelings. In this court, just like the Director General, the best interests of children are paramount.
…
Simply put, to make an application for recusal on the basis that the Director General’s appraisals have been influenced in any way, shape or form is incorrect, and the application must fail. We thank our friend for the aide-memoire and we rely on its contents.
The ICL’s submissions
The ICL’s submissions were likewise brief. I need only note the following from them.
First, the ICL noted, as others had done, that the trial has not concluded. Therefore, there remained the opportunity for the Father (and everyone else) to make submissions. Secondly, and related to the first matter, the most recent decision of the Court regarding the placement of the children with the Mother was an interim decision only. The ICL noted that no appeal against that decision had been filed.
Thirdly, the ICL noted that the Father had the opportunity during the hearing of his Application to take the Court to relevant evidence in support of his various contentions. Pointedly, he noted that no such evidence was provided in support of the Father’s contentions.[9] In a similar vein, the ICL noted that the Father’s submissions and claims were all “subjective” whereas the relevant test for apprehended bias was predicated upon an objective test. Summarily, the ICL stated:[10]
There has been much in the way of assertion. There has been much in the way of submission. There has been little in the way of evidence to support those claims. At paragraph 132 the father seeks to clarify his position. Subparagraph (a):
I am expressing my concern.
So it’s a subjective conclusion without the basis, without the support of evidence.
[9] See, for example, the discussion at T 40 – 41.
[10] T 43.
The ICL concluded his submissions this way:[11]
There is no evidence, in my submission, to support an application that your Honour should need to recuse yourself and, if I can conclude by referring to paragraph 14 of the father’s second set of submissions, which, again, turns on a belief, a subjective view, there simply is no evidence that the court has already formed views about his mental health, character, trustworthiness and reliability at 2019 and there simply is no evidence that the court hasn’t and won’t consider any and all new evidence in submissions that may be made if this trial is allowed to continue and conclude.
[11] T 44 – 45.
Outline of principle
In a more systematic way, I note the following principles, notwithstanding that a number of them have been referred to a number of times in the course of submissions, both oral and written.
A convenient starting point for the consideration of principle are comments by Kirby J in Antoun v The Queen.[12]
[12] Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
First, at [32], his Honour said (internal citations omitted): [13]
… the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the “opportunity, before judgment, to be heard to correct and to persuade.” Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[13] See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
At [33], Kirby J noted summarily the particular circumstances in the matter before him that gave rise to apprehended bias:
… the problem in the present case was that the views, as expressed, and re-expressed were not tentative, or not apparently so. They were stated peremptorily, repeated emphatically and given force by later remarks and actions, including the unrequested decision as to bail.
In comparison to the matters before the High Court in Antoun, I simply observe that in the matter before me, at its highest, and by reference only to the evidence relied upon by the Applicant as set out in his Affidavit (as opposed to the wider context set out in the official Transcript), the recusal Application is made essentially on the basis of the Court asking a number of questions on one occasion in the course of the 4 day hearing.
Contrary to the Applicant’s submissions, no “settled view” was expressed by me (peremptorily, repeatedly, or otherwise); no ruling was made; nor was the Applicant precluded from making relevant submissions at the end of the hearing, or otherwise.
In Antoun, Kirby J also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[14]
[14] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
Also in Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted; emphasis added):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected “characteristics” of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted; emphasis added):[15]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[15] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], referred to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[16]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[16] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said (emphasis added):[17]
Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.
[17] As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J.
In what is generally regarded as the principal recent authority in relation to apprehended bias, in Ebner, at [7], the High Court stated plainly that a reasonable apprehension of bias must be real and not a remote possibility.[18] A reasonable apprehension of bias must be an inference open on proven facts, not mere speculation or suspicion, and certainly not on misconceptions of basic legal principle and practice in litigation. Unfortunately, the Father’s extensive “concerns” or apprehensions are invariably properly characterised by one or more of the descriptions noted here.
[18] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].
Again by reference only to the selective passages of transcript that are relied upon by the Applicant in the present matter, and having regard to the principles to which I have referred, the inquiry or querulous comment by me, on one occasion during a 4 day trial, cannot, and does not, on any view of the authorities, constitute bias of any kind, least of all actual bias. When proper regard is taken of the entire transcript surrounding the matters raised by the Applicant, it puts into even sharper focus the implausibility of both (a) the factual and legal contentions made by the Applicant and in turn (b) the likelihood of success of the Application.
A more recent consideration of apprehended bias by the High Court is the decision in Michael Wilson & Partners Limited v Nicholls.[19] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[19] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
…
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

The High Court further observed, at [69] – [70] (internal citations omitted):[20]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[20] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
The principles that govern “waiver” and the requirement that any application for recusal on the basis of bias of any kind be made promptly are well-known and are to be gleaned from the authorities noted below.[21] In particular, among the authorities recorded, I note that in Vakauta v Kelly, the High Court said (at p.587): “when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain that the judge was biased.”
[21] see Vakauta v Kelly (1989) 167 CLR 568 at 572 (Brennan, Deane & Gaudron JJ) & 579 (Dawson J); Smits v Roach (2006) 227 CLR 423 at 439-442 (Gleeson CJ, Heydon & Bell JJ) & 465-466; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 449 (Gummow ACJ, Hayne, Crennan and Bell JJ).
Consideration and disposition
Against the background of the principles outlined, and in the light of comments already made throughout these reasons, I can be quite brief.
First, given the acceptance, as there must be, that the matter remains “part-heard” and that otherwise the final hearing remains unfinished, any decisions thus far are, necessarily, interim, including the recent decision to place the children in the Mother’s primary care. It also follows that there remains a final opportunity for everyone (including the Father) to put submissions before the Court (based on evidence and nothing else, other than relevant principle) at the conclusion of the trial.
It follows from this that any contention by the Father that the Court has made various, or relevant, “final rulings” is erroneous. Any such contentions must therefore be dismissed.
Secondly, having left his recusal Application until the final day of the hearing is sufficient, of itself, to dismiss the Application. Such Applications, according to the authority listed above, must be brought promptly. That has not occurred here. Indeed, given the breadth of the Father’s disquiet, and how long it has been, as it were, festering, the lateness of the Application borders on the derisory. Further, as noted by the ICL, the Application has in fact thwarted the completion of the final hearing, which in turn has meant the delay in making final Orders.
Also in relation to “waiver”, there has been late breaking but critically important developments since the hearing. As noted briefly above, under cover of a letter dated 29^th September 2023 (but not received by my Chambers until 3^rd October – under the new, national system, not infrequently documents get “bumped around” between various levels of registrars), the Father seeks an urgent listing arising out of the Mother’s decision to change the children’s school. Given that, under the existing interim Orders, the Mother has sole parental responsibility, the Father’s Application, on its face, seems rather misconceived, including the fact (noted a number of times already) that there remains the unfinished final hearing at the conclusion of which, in the light of all the evidence and submissions, final Orders will be made. In any event, for the purposes of the current recusal Application, at par.10 of the Father’s covering letter, he stated:
As you may be aware, Judge Neville is currently subject to a Recusal Application by me; however, somewhat paradoxically, owing to his continuity of knowledge of this case, he may be the one best suited to preside in this instance, if he is willing. The rules and case-law certainly allow for it.
The “rules and case-law” referred to by the Father was not identified. In any event, in my view, an Applicant who seeks the recusal of a Judge cannot also seek that the same Judge hear a further, different Application. The two positions are mutually exclusive. Stated more colloquially, one cannot ask a Judge to recuse herself or himself, and then ask the same Judge: “please hear this matter.”
Thirdly, and in no hyper-critical way, the Father has completely misunderstood and misconceived both the role and independence of lawyers (the ICL in particular), and the role (and standard operating procedures) of the Court. His analogous contention that, in some undefined way, the Court is responsible, as a platoon leader is of those in her or his command, for the actions and conduct of lawyers who appear before the Court, is completely awry and totally inappropriate. It follows that any perceived breach of conduct or protocol by, for example, the former ICL in discussions with CYPS, and that this is in some way to be sheeted home to the Court as its responsibility, is likewise erroneous, as is any attribution of alleged wrong-doing and for such to be laid at the feet of the Court. Again, in no hyper-critical way, the self-represented Father’s wide-ranging research has suffered from a lack of proper foundations and understanding of more basic principle. His research, while somewhat wide, lacks significant and appropriate depth to give both context and understanding to various principles that are, in a fashion, simply launched into the litigious ether to land somewhere, but which have invariably missed the intended targets. This is a classic case of a little information being, in the end, rather dangerous. General principles are regularly stated but not properly grounded in fact, and certainly not in the evidence before the Court. All of this has led the Father to mislead himself about proper judicial and legal practice, and about significant matters of evidence.
Fourthly, a very large number of the Father’s complaints arise from his perception of certain actions of the previous ICL. His perceptions are simply that – perceptions. The Father is highly suspicious, and regularly takes offence to any specific opposition to any of his arguments. Not infrequently he describes his evidence (and submissions) as “expert.” Plainly they are not. Understandably, his perceptions are through the specific and highly interested and “invested” lens as the Father of the children. The next part of the Father’s chain of complaint is then to attribute any default on the part of the former ICL to the Court, for reasons set out above (i.e. sort of chain of command in defence force governance terms, inappositely translated to civilian life and settings, including the Court). Such attribution of alleged (and otherwise unsupportable) fault to both the former ICL, and in turn to the Court, is not supported by evidence or principle.
Fifthly, the overwhelming bulk of complaints by the Father set out in his voluminous submissions, are invariably founded upon his alleged lack of confidence in the Court because of the perceived conduct of lawyers, the Court and multiple others. “Lack of confidence”, as pointed out by others, is not the relevant test for a recusal Application (either “actual” or “apprehended” bias). Nor is the Father’s “perception” the relevant factor to be equated with the reasonably well-informed, but not overly sensitive or suspicious by-stander. Respectfully, he is anything but. Indeed, he is often highly sensitive and regularly suspicious.
Finally, the complaints are, at best, tendentious. They are highly subjective rather than relevantly objective. They are mostly so broad and diffuse as to be unable to be properly identified. None of them are supported by any relevant evidence. They are so widely, and in many respects wildly, drawn as to be not only unsupported by evidence, but also they are not comprehended by relevant principle. No claim, of any kind of bias, is made out either factually or as a matter of application of principle.
In addition to accepting the submissions on behalf of the Mother, the Director-General, and the ICL, for the reasons given, the Application is not made out in any relevant respect and must be dismissed. I reserve the costs of each of the other parties (i.e. the Mother, the Director-General and the ICL).

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 19 October 2023

File number(s):	CAC 924 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	19 October 2023
Catchwords:	FAMILY LAW – Parenting – recusal application – contentions by the Father that various interim Orders constituted alleged “findings” and which were said to be adverse to him, was patently incorrect and showed significant misunderstanding by the Father of both the Court’s processes and the nature of and distinction between interim and final Orders – the Father’s recusal Application was brought so late in the final hearing, which remains part-heard, that according to authority, it amounted to waiver because the Father waited so long to raise any concerns about either matters of procedure and matters of evidence, both when he was legally represented and when he was self-represented – even after bringing his recusal Application, and it being heard, the Father filed a further Application in which he sought that the trial Judge (against whom the recusal Application was filed) hear that Application – the Father is ex-defence forces but has erroneously sought to apply to the Court (and the lawyers who appear before it) certain rules and procedures from the Australian Defence Force, including that, somehow, the Court is responsible for any and all communication between lawyers, outside Court, that impacts or may do so, the litigation, which again highlights the Father’s failure to appreciate the role of lawyers and their duties to the Court, including and especially the duty of lawyers appearing in the role of Independent Children’s Lawyer – recusal Application refused – costs of all other parties, including the ICL and the Director-General, reserved..
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL (1986) 161 CLR 342 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 Smits v Roach (2006) 227 CLR 423 Vakauta v Kelly (1989) 167 CLR 568
Division:	Division 2 Family Law
Number of paragraphs:	74
Date of hearing:	16 August 2023
Place:	Canberra
Applicant	Self-represented
Counsel for the Respondent	Mr J Haddock
Solicitor for the Respondent	Bevan & Co
Independent Children’s Lawyer	Robinson + McGuinness Family Law

CAC 924 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FARRINGTON Applicant
AND:	MS BELKIS Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	19 OCTOBER 2023

16^th – 17^th March 2023	Final Hearing with respect to parenting.
22^nd March 2023	Subpoenas to W Authority and Z Authority issued by the Independent Children’s Lawyer.
29^th March 2023	Father filed Notices of Objection with respect to W Authority and Z Authority subpoenas.
18^th April 2023	Subpoena Hearing with respect to Father’s Objections.
21^st April 2023	3^rd Day of Final Hearing (part-heard).
28^th April 2023	4^th Day of Final Hearing (part-heard).
1^st May 2023	Judgement Delivery – subpoena objections. - Subpoena objections dismissed. - Father ordered to pay Respondent Mother’s and Independent Children’s Lawyers costs for Counsel and solicitors fees.
22^nd May 2023	Father’s legal representatives withdraw.
16^th June 2023	Mother files Application in a Proceeding. - Mother seeks immediate return of children to her care and Father’s time be suspended on an interim basis. Father files Application in a Proceeding. - Father seeks sole care of children and supervised visits for the Mother.
19^th June 2023	Orders in Chambers – - Mother to file additional Affidavit on behalf of the maternal Grandfather responding to Father’s Affidavit filed 16^th June 2023. - Parties and Independent Children’s Lawyer to file 1 page of written submissions in relation to procedural course with respect to the re-opening of evidence.
20^th June 2023	Orders in Chambers – - Request made for Director-General to intervene in the proceedings.
23^rd June 2023	Interlocutory Hearing with respect to re-opening proceedings. Representative of Director-General attended, although not yet a party to proceedings advised of intention to intervene. - Region U CYPS advised a further appraisal would be completed in approximately 3 weeks and provided to the Court under previous s.69ZW Order.
28^th June 2023	Judgement Delivery – re-opening proceedings. - Director-General joined as a party to the proceedings. - Final Hearing listed for a further date only in relation to issues post-dating 28^th April 2023. - Orders made for resumption of Mother’s time, and eventual return to week-about arrangement. Notations – - Father confirmed he did not seek to make an Application for disqualification of the Independent Children’s Lawyer.
10^th July 2023	Orders in Chambers – - Each party to file and serve one consolidated Affidavit and one Affidavit per lay witness to be relied upon at the re-opening Final Hearing.
26^th July 2023	Orders in Chambers – - Region U CYPS Appraisal Report released to parties. - Parties not to disclose contents of Report to children or any other person. Independent Children’s Lawyer files Application in a Proceeding seeking Orders for discharge. Mother filed further Application in a Proceeding. - Mother sought Orders for sole parental responsibility and sole live with Orders, and for the children to have no contact with the Father.
31^st July 2023	Orders in Chambers – - Independent Children’s Lawyer provisionally discharged.
2^nd August 2023	Affidavit filed by Ms AA of Region U CYPS in support of Mother’s Application in a Proceeding filed 26^th July 2023.
3^rd August 2023	Father files Application in a Proceeding. - Father seeks Final Hearing on 16^th August 2023 be adjourned. - Father seeks children live solely with him, but spend time with the Mother in accordance with their wishes. Interim Hearing – Interim Change of Residence Applications Notations – - Neither party seeks to cross-examine the former Independent Children’s Lawyer at the part-heard Final Hearing. - Notwithstanding adverse comments in the further CYPS Appraisal Report, the Father does not make an application for recusal of the presiding Judge.
4^th August 2023	Judgement Delivery – Interim Change of Residence - Mother to hold sole parental responsibility. - Children to live with the Mother and spend no time with the Father. - Recovery Order to lay in the Registry pending compliance.
14^th August 2023	Father files Application in a Proceeding seeking recusal of the presiding Judge.
16^th August 2023	5^th Day of Final Hearing (part-heard). Unable to proceed with Final Hearing – Father’s Recusal Application heard.